CORRESPONDENCE 


RELATING  TO 


MASSACHUSETTS  CLAIM 


UCStf    LitJKAKY 

V   r/*\  ^^-  /   //  /  / \ 
CJ/  75    ^/  ^-/  (  _x 

REPORT 

OP  THE 

HON.    JOHN    DAVIS, 

afgent  for  tj>e  39rosecutfoti  of  ti)e 

CLAIM  OF  MASSACHUSETTS 


UPON   THE 


UNITED  STATES, 

FOR 

MILITIA  SERVICES  DURING  THE  LAST  WAR 

TO 

HIS  EXCELLENCY  LEVI  LINCOLN, 

GOVERNOR  OF  THE  COMMONWEALTH, 

Referred  to  in  the  Governors  Speech,  and  transmitted 
by  him  to  the  Legislature,  by  Special  Message, 

MAY  30,   1831. 


Uoston : 

BUTTON  AND  VVENTWORTH,  PRINTERS  TO  THE  STATE. 

1831. 


SENATE..  ..No.  2. 


WORCESTER,  APRIL  2d,  1831. 
SIR, 

In  my  letter  of  the  20th  of  November  last,  I  gave 
you  an  account  of  my  proceedings  as  the  Agent  of  Mas- 
sachusetts in  settling  her  Claim  upon  the  United  States, 
for  disbursements,  during  the  late  war,  and  at  the  same 
time  communicated  to  you  the  correspondence,  which 
had  then  taken  place  between  me  and  the  Secretary  of 
War.  I  will  now  invite  your  attention  to  subsequent 
transactions.  I  left  this  place  in  the  latter  part  of  De- 
cember for  Washington,  having  previously  requested 
the  Secretary  to  inform  me  if  my  personal  attention  to 
the  business  would  hasten  its  termination,  and  assured 
him,  if  such  was  the  case,  that  I  would  at  once  repair 
to  that  city.  1  found  on  my  arrival  that  no  delay  had 
been  occasioned  by  my  absence. 

In  order  that  the  correspondence  and  documents  to 
which  I  shall  refer  your  Excellency  may  be  understood,  I 
will  again  state  the  condition  of  the  claim,  when  it  was 
taken  up  by  me,  as  the  agent  of  the  Commonwealth, 
and  the  question  which  was  pending  between  me  and 
the  Secretary  of  War,  when  1  made  my  report  in  No- 
vember last. 

Before  the  passage  of  the  act  of  Congress  of  May,  1 830, 
which  provided  for  the  adjustment  of  the  demand,  the 
House  of  Representatives,  by  a.  resolution,  had  directed 
1 


the  then  Secretary  of  War,  Mr.  Barbour,  to  cause  it  to 
be  examined  for  the  purpose  of  ascertaining  what  was 
due,  and  in  compliance  with  that  resolution,  the  ac- 
count with  the  vouchers  were  committed  to  the  Third 
Auditor  for  that  purpose.  The  whole  underwent  a  rigid 
ex-parte  examination,  and  his  report  to  the  Secretary 
was  made  in  1828,  and  laid  before  the  House  of  Rep- 
resentatives without  a  re-examination  or  any  alteration. 

In  this  report  the  expenditures  of  the  State  were  ar- 
ranged under  the  following  heads.  1.  "  Guards,"  which 
embrace  the  charges  for  such  troops  as  were  detached 
to  watch  the  approach  of  danger  and  to  transmit  intel- 
ligence thereof.  2.  "  Alarms,"  or  disbursement  for 
troops  who  were  called  out  on  sudden  emergencies  to 
repel  actual  or  threatened  invasion,  where  the  circum- 
stances did  not  allow  of  delay.  These  troops  were  de- 
tached by  orders  which  reposed  discretionary  authority 
in  the  commanders  of  Divisions  for  that  purpose.  3. 
"  Executive  Calls,"  or  the  charges  for  troops  taken  into 
the  service  by  order  of  the  Governor,  upon  the  repre- 
sentation of  the  inhabitants  of  the  dangers  to  which 
they  were  exposed  by  an  armed  force  upon  the  coast. 
Under  these  heads,  nearly  the  whole  claim  is  arranged, 
but  there  are  several  subordinate  classes,  which  there 
is  no  occasion  to  enumerate. 

So  much  of  the  report  as  presents  a  general  analysis 
was  printed  by  order  of  the  House  of  Representatives 
in  1828,  from  which  it  appears,  that  the  Auditor  pro- 
ceeded in  his  examination  without  reference  to  the  con- 
troversy between  the  two  governments,  professing  to 
allow  or  reject  items  on  the  same  principles  which  had 
been  applied  to  the  settlement  of  like  claims  from  other 
States.  The  whole  amount  demanded  is 


and  the  amount  allowed  is  $430,748  26.  The  princi- 
pal items  of  charge  are  the  pay  of  troops,  their  clothing, 
the  use  of  arms,  rations,  hospital  expenses,  fortifications, 
hulks  sunk  or  prepared  to  be  sunk  for  the  defence  of 
harbors,  barracks,  transportation,  &c.  &c.  The  deduc- 
tions, which  constitute  nearly  one  half,  are  arranged 
under  several  heads.  1.  Clothing,  which  is  said  to  be 
inadmissible,  because  allowances  of  that  kind  have 
not  been  made  to  the  militia  of  any  State.  2.  Use  of 
arms,  for  which  the  State  allowed  to  each  soldier  fifty 
cents  a  month,  is  declared  to  be  inadmissible  for  the 
same  reason.  3.  Overpayments  for  rations.  The  State 
allowed  20  and  25  cents  for  each  ration,  while  the  Au- 
ditor allowed  but  17  cents,  on  the  ground  that  the  Uni- 
ted States  had  a  contract  in  this  Military  District  to 
furnish  all  rations  at  that  rate.  On  an  early  represent- 
ation, however,  to  the  President,  Mr.  Monroe,  that  the 
contractor  could  not  supply  them,  he  agreed  that  they 
should  be  estimated  at  17  cents,  and  the  balance  should 
stand  for  further  consideration.  4.  Overpayments.  The 
State,  in  making  up  the  daily  pay  of  the  troops,  ave- 
raged it  upon  30  days  for  a  month.  The  United  States 
adopted  a  different  rule,  by  averaging  it  upon  the  actual 
number  of  days  in  the  month  when  the  service  was  ren- 
dered. For  example,  the  pay  of  a  colonel  is  $70  a 
month,  and  his  daily  pay,  at  this  rate,  in  a  month  of  28 
days,  would  be  $2,50  ;  in  a  month  of  30  days,  $2,33 ; 
and  in  a  month  of  31  days,  $2,25J.  The  application 
of  this  rule  caused  considerable  deduction.  5.  Excess 
of  rations.  The  Auditor  alleges  that  in  some  instances 
a  greater  number  of  rations  are  charged  than  the  troops 
were  entitled  to,  and  in  others,  that  officers  drew  a 
greater  number  than  their  rank  justified.  The  excess 


is  disallowed.  6.  Payments  by  the  State  for  Servants. 
These  items  are  in  all  instances  disallowed,  where  the 
servants  do  not  appear  by  the  rolls  to  have  been  regu- 
larly mustered.  7.  Forage.  It  is,  perhaps  in  most  in- 
stances, rejected,  because  the  officers  have  not  certified 
according  to  the  army  regulations,  that  the  horses  were 
actually  employed  in  the  service.  8.  Many  of  the 
charges  for  fuel  and  rooms,  instead  of  barracks,  are 
deducted,  because  the  evidence  which  supports  them  is 
informal  or  unsatisfactory.  9.  Fortifications.  All  charges 
for  the  erection  of  fortifications  and  batteries  are  alleged 
to  be  inadmissible,  on  the  ground  that  such  expenses 
are  never  allowed.  Other  objections  are  made  to  many 
of  the  expenditures  which  appear  at  large  in  certain 
manuscript  documents  of  the  Auditor  called  "  Rough 
Notes,"  but  there  is  no  occasion  to  enter  more  into  de- 
tail. In  all  cases  where  the  evidence  in  support  of  the 
charges  was  considered  informal  or  insufficient,  the 
charges  are  suspended  for  further  proofs  and  explana- 
tions, but  where  they  are  such  as  had  not  been  allowed 
to  other  States,  they  were  noted  as  inadmissible.  There 
are  charges,  also,  to  a  large  amount,  which,  by  the 
established  usage  of  the  Department,  fall  within  the  dis- 
cretion of  the  Secretary  to  allow  or  reject,  as  he  thinks 
proper,  upon  a  view  of  all  the  circumstances.  Such 
charges  were  left  by  the  Auditor  for  the  decision  of  the 
Secretary,  but  Mr.  Barbour  made  none,  and  none  has 
since  been  made ;  so  they  stand  at  present  as  rejected. 
From  all  this,  it  is  obvious  that  the  sum  allowed  con- 
sists of  monthly  pay,  fuel,  forage,  hospital  expenses, 
servants,  travel,  rations,  &c.,  embracing  nearly  every 
kind  of  expenditure,  which  has,  under  the  usage  of  the 
government,  been  allowed  to  militia  in  the  public  ser- 


vice ;  and  that  the  greater  part  of  the  sum  disallowed 
consists  of  similar  charges,  which  either  require  further 
proof  or  explanation,  or  await  the  decision  of  the  Sec- 
retary where  they  depend  on  his  discretion. 

When  the  business  was  intrusted  to  my  care,  as  agent 
of  the  Commonwealth,  I  found  the  claim  in  this  condi- 
tion. I  considered  the  adjustment,  as  it  stood  in  the 
report,  as  substantially  ex-parte,  for  if  1  am  rightly  in- 
formed, the  State  had  no  one  present  at  that  time  to 
furnish  additional  evidence,  or  to  afford  any  explana- 
tions. I  need  not  inform  your  Excellency,  that  in  such 
examinations  a  most  scrupulous  regard  to  the  interests 
of  the  United  States,  is  observed,  all  items  being  reject- 
ed which  are  not  sustained  by  proofs  which  agree  in 
form  as  well  as  substance  with  the  rules  of  the  Depart- 
ment. This  is  but  the  natural  result  of  a  debtor's  hold- 
ing power  to  settle  with  his  creditor  according  to  his 
own  pleasure. 

Under  these  circumstances,  as  you  are  apprised,  a 
proposition  was  made  soon  after  the  passage  of  the  law 
of  1830,  to  the  Secretary  of  War,  to  pay  to  the  State  the 
balance  found  due  by  the  report  of  the  auditor,  amount- 
ing to  $430,748,26.  He  was  invited  to  take  this  course 
because  it  was  believed  the  provisions  of  the  act  of  Con- 
gress, were  broad  enough  to  cover  this  entire  sum,  and 
as  advances  had  been  made  to  other  States,  while  their 
demands  were  in  a  course  of  settlement,  it  seemed  to  be 
manifestly  unjust  to  withhold  this  sum  from  Massachu- 
setts, until  a  final  and  complete  adjustment  should  take 
place.  The  first  question  which  arose  upon  this  pro- 
position, was,  whether  any  further  auditing  was  neces- 
sary as  to  that  sum,  and  the  Secretary  early  came  to  the 
conclusion  that  it  was  not.  The  next  question  was, 


whether  the  terms  of  the  act  were  broad  enough  to 
cover  this  sum,  being  made  up,  as  it  was,  of  the  services 
and  expenditures  of  every  corps  of  troops  called  out  by 
the  authority  of  the  State  during  the  war. 

This  question,  as  you  are  aware,  was  agitated  during 
my  residence  at  Washington,  in  the  month  of  October 
and  November  last,  and  was  left  undecided.  The  dis- 
cussion was  resumed  on  my  return  in  December,  follow- 
ing, and  continued  from  time  to  time,  until  the  20th  of 
January,  1831,  when  I  received  a  note  from  the  Secre- 
tary covering  his  decision,  made  then  as  you  will  per- 
ceive in  a  confidential  manner,  but  which,  by  subsequent 
transactions  has  necessarily  become  public.  Both  docu- 
ments are  hereunto  annexed  and  marked  (A).  In  refer- 
ence to  the  authority  conferred  on  him  by  the  Act  of 
Congress,  about  which  the  Secretary  seemed  at  one 
time  to  entertain  doubts ;  he  observes  in  making  his 
decision.  "  In  discharging  the  trust  given  to  me  under 
this  act,  I  have  not  felt  myself  called  upon  to  consider 
the  claim  in  reference  to  the  objections  which  were 
originally  made,  but  simply  to  determine  under  the  pro- 
visions of  the  act,  if  at  the  time  these  claims  arose,  and 
when  the  militia  were  called  out,  there  was  '  an  actual 
invasion  or  well  founded  apprehension  of  invasion,'  and 
also  whether  '  the  numbers  were  in  undue  proportion  to 
the  exigency.'  To  determine  these  is  all  I  feel  myself 
called  upon  or  required  to  do."  I  ought  here  to  observe, 
that  he  was  not  only  solicited  to  make  this  payment 
upon  the  strength  of  the  Auditor's  report,  but  when  that 
was  done  to  proceed  to  a  re-examination  of  the  suspend- 
ed items. 

In  coming  to  a  decision  upon  the  above  principles,  the 
Secretary  as  you  will  perceive  rejected  all  the  disburs- 


ments  accruing  under  the  denomination  of  "  Executive 
Calls,"  between  the  14th  of  June  and  the  4th  of  Sept. 
1814,  amounting  as  is  believed,  to  about  $50,000.  Not 
being  satisfied  with  the  reasons  assigned  for  this  deduc- 
tion, I  had  an  interview  with  him  on  the  25th  of  January. 
His  objections  are  set  forth  in  his  decision,  and  not  en- 
tirely on  the  ground  that  there  were  troops  enough  in 
the  service  to  meet  the  exigences  of  that  period.  Exclu- 
sive of  those  rejected,  and  therefore,  in  the  terms  of  the 
Act  "  the  numbers  [out]  were  in  undue  proportion  to 
the  exigency."  To  remove  this  objection,  I  proceeded 
to  make  him  acquainted  with  the  actual  state  and  con- 
dition of  Massachusetts  and  Maine  during  that  period. 

1.  I  invited  his  attention  to  the  geography  of  these 
two  States,  as  exhibited  by  the  maps  shewing  a  maritime 
frontier  of  nearly  or  quite  600  miles  which  was  not,  and 
could  not  be  defended,  except  by  a  marine  force  strong 
enough  to  hold  possession  of  our  waters. — 1  drew  his 
attention  to  the  fact,  that  this  great  extent  of  Coast  is 
indented  and  intersected  with  large  rivers,  broad,  deep 
and  secure  bays,  inlets  and  harbours,  affording  a  safe 
and  easy  navigation  to  large  ships,  and  also  to  the  fact, 
that  the  shores  in  most  places  are  bold,  and  in  Maine 
especially,  covered  by  a  vast  number  of  Islands,  thinly 
inhabited  and  wholly  unprotected.     I  contended  that 
these  facilities,   enabled  the  enemy  to  penetrate  with 
safety  into  an  undefended  country,  unless  he  was  re- 
strained by  armed  and  organized  troops.     I  pointed  out 
the  convenience  offered  by  the  Coast  to  an  enemy  in 
possession  of  the  waters,  showing  that  a  squadron  could 
maintain  itself  in  all  weathers  South  of  Cape  Cod,  by 
finding  secure  anchorage  and  watering  places  in  the 
Vineyard  Sound  and  among  the  Elizabeth  Islands — that 


8 

another  could  with  like  safety  cruise  in  Massachusetts 
Bay,  'finding  good  and  secure  anchorage  at  all  times  in 
the  harbour  of  Cape  Cod,  where  there  is  no  population 
capable  of  disturbing  an  enemy,  that  a  third  could  main- 
tain itself  on  the  Coast  of  Maine,  where  the  numerous 
undefended  harbours  and  Islands  afford  every  conven- 
ience in  all  kinds  of  weather. 

2.  1  pointed  out  the  full  extent  of  measures  which  had 
been  taken  to  defend  this  extensive  frontier,  no  part  of 
which  could  be  said  to  be  fortified  except  Boston  Har- 
bor.    There  were  batteries  at  the  entrance  of  some  of 
the  principal  ports,  erected  for  the  purpose  of  enforcing 
the  revenue  laws,  but  some  were  without  men,  others 
too  feebly  manned  to  make  any  resistance,  and  others 
decayed  and  deserted.     In  proof  of  these  facts,  1  ad- 
duced the  letter  of  Gen.  King  and  others  who  were  ac- 
quainted with  the  condition  of  these  batteries,  and  whose 
declarations  fully  bear  out  the  statements  made  by  me. 

3.  After  having  shewn  the  extent  and  condition  of  our 
Coast,  I  proceeded  to  prove,  what  is  now,  matter  of  his- 
tory, familiar  to  all  of  us,  who  personally  knew  what 
passed  during  that  period,  to  wit,  that  the  whole  range 
of  frontier  was  rigorously  blockaded — that  the  ships  of 
the  enemy  were  filled  with  an  extra  number  of  men,  and 
provided  with  barges  and  tenders  to  prosecute  a  maraud- 
ing warfare — that  one  of  his  squadrons  cruised  South 
of  Cape  Cod,  another  in  Massachusetts  Bay,  and  a  third 
on  the  Coast  of  Maine,  that  the  number  of  ships  in  that 
service,  as  nearly  as  I  could  ascertain  from  a  careful 
examination  of  the  Marine  lists  of  the  day,  were  about 
six  74s  and  eight  Frigates,  with  a  proper  proportion  of 
Sloops  of  war  and  smaller  vessels.     I  contended  that 
this  powerful  armament  could  be  speedily  concentrated 


at  any  given  point,  or  if  desirable  united  with  the  ships  at 
the  naval  depot  at  Halifax,  where  it  would  have  been  irre- 
sistible in  its  operations ;  that  all  this  was  seen  by  the 
government  of  Massachusetts,  and  common  prudence 
required  that  measures  should  be  taken  to  guard  against 
the  danger. 

4.  1  next  adduced  evidence  to  prove  that  news  from 
the  most  credible  sources  had  reached  Massachusetts  in 
the  month  of  June,  that  large  armaments  were  fitting 
out  in  England-for  our  coast,  in  addition  to  the  above, 
whose  destination  was  unknown,  and  therefore  appre- 
hensions were  excited  throughout  the  country,  and  more 
especially  in  places  which,  like  Massachusetts,  had  no 
resources  of  defence  to  rely  on  except  the  Militia. 

5.  I  contended  that  none  but  a  regular  organized 
force  could  be  safely  relied  on  to  repel  marine  descents, 
for  they  were  ordinarily  sudden  and  unexpected  ;    that 
the  movements  of  such  a  force  are  so  rapid  and  decep- 
tive as  to  leave  no  time  for  repose  ;  that  what  is  ap- 
parently abandoned  in  the  morning,  may  be  attacked  in 
the  evening  ;  that  we  were  apprized,  from  the  declara- 
tions and  conduct  of  the  enemy,  that  a  principal  object 
was  to  destroy  our  shipping,  which  was  then  very  great 
and  principally  in  port;  that  in  June  and  July  he  ac- 
tually entered  Wareham,   Gloucester,   Cohasset,  Saco 
and  other  places,  burning  and  cutting  out  vessels  and 
destroying  other  property.     I  urged  that  a  single  74 
could  fit  out  a  force  of  400  or  500  men  to  enter  our 
harbors  for  these  marauding  purposes,  and  that  none 
but  troops  embodied  and  organized  could  successfully 
repel  such  assaults,  for  the  work  of  desolation  would 
be  over  before  the  unembodied  Militia  could  be  collect- 
ed at  a  rendezvous.     In  support  of  this  reasoning,  I 

2 


10 

quoted  the  opinion  of  that  distinguished  and  experi- 
enced officer  Commodore  Bainbridge,  who  in  speaking 
of  Boston  at  that  period,  in  a  letter  to  the  late  Gover- 
nor Brooks,  says,  the  work  of  destruction  would  be  ac- 
complished by  the  enemy  before  the  Militia  could  be 
collected  to  repel  him.  Hence  I  inferred  that  the  Sec- 
retary was  erroneous  in  his  opinion  that  the  local  and 
unembodied  Militia  could  be  relied  on  to  defend  our 
seaports  against  the  assaults  of  such  an  enemy,  so  arm- 
ed and  provided  for  wasting  and  destroying  our  floating 
property  and  undefended  towns. 

7.  To  prove  that  great  and  serious  apprehensions  of 
danger  were  entertained,  I  showed  that  many  thousands 
of  our  citizens  performed   daily  voluntary  service,  in 
keeping  up  night-watches,  and  in  laboring  in  fortifica- 
tions and  batteries,  for  which  they  never  demanded  or 
received  any  remuneration  ;  that  many  municipal  cor- 
porations advanced  large  sums  of  money  gratuitously 
for  the  same  common  object ;  and  that  great  numbers 
of  the   inhabitants   moved  their  property  into  the  in- 
terior. 

8.  I  next  invited  his  attention  to  the  allowances  made 
by  the  United  States  to  Maryland,  Virginia,  and  North 
Carolina,  during  the  same  period,  which,  I  had  ascer- 
tained from  good  authority,  far  exceeded  the  claim  of 
Massachusetts,  although  each  of  these  States  had  much 
less  maritime  frontier,  and  were  much  less  exposed  to 
depredation. 

9.  I  contended,  that  it  was  impossible  to  ascertain 
the  precise  amount  of  force  necessary  to  repel  an  ene- 
my invading  us  from  the  sea.     The  movements  of  a 
fleet  are  rapid  ;  the  object  was  the  destruction  of  prop- 
erty, and  the  dishonor  of  the  country.     Our  defence 


11 

was  confided  to  the  militia,  because  the  United  States 
could  provide  us  with  no  other  force,  and  they  having 
turned  out  in  the  most  prompt  and  patriotic  manner, 
and  sustained  the  honor  of  the  nation,  it  would  be  a 
most  discouraging,  ungenerous  return  to  withhold  their 
pay,  when  that  is  but  a  most  miserable  indemnity  for 
their  sacrifices.  I  enforced  this  reasoning  by  many 
other  considerations,  which  it  is  unnecessary  to  enume- 
rate, as  what  I  have  recapitulated  will  possess  you  of 
the  general  grounds  assumed.  At  the  close  of  the  in- 
terview, the  Secretary  observed  he  would  examine  the 
documents  to  which  I  had  referred,  and  then  he  should 
wish  for  another  interview. 

Here  the  interview  rested  for  some  time.  1  called 
whenever  it  was  convenient,  to  ascertain  what  progress 
had  been  made,  but  had  no  further  conversation  of  im- 
portance, nor  were  there  any  written  communications 
on  this  question,  except  a  brief  note  under  date  of  Jan. 
26th,  designed  principally  to  furnish  more  accurate  in- 
formation as  to  the  amount  of  tonnage  owned  in  Massa- 
chusetts and  Maine  than  I  possessed  at  the  time  of  the 
above  conversation ;  an  extract  from  which  is  herewith 
submitted  for  your  consideration,  and  marked  (B). 

On  the  5th  of  February  following,  I  was  at  the  de- 
partment, and  the  Secretary  observed  that  he  should 
probably  make  known  his  decision  on  the  next  day. 
This  was  unexpected  to  me,  as  I  supposed  he  would 
have  invited  me  to  another  interview  ;  but  as  I  felt 
anxious  to  bring  the  matter  to  a  close  as  soon  as  possi- 
ble, I  made  no  objection  to  that  course,  but  addressed 
to  him  a  letter,  recapitulating  the  views  I  have  already 
communicated,  accompanied  by  some  additional  re- 
marks, a  copy  of  which  I  herewith  submit  to  you, 


12 

marked  (C).  I  took  this  course,  lest  the  Secretary, 
who  is  usually  pressed  with  a  great  weight  of  business, 
might  have  forgotten  the  arguments  which  had  been 
urged  upon  his  consideration ;  and  I  communicate  the 
letter  to  you  because  it  forms  a  part  of  the  history  of 
my  proceedings,  and  contains  some  matters  which  are 
not  adverted  to  in  the  foregoing  statement. 

The  Secretary,  however,  did  not  make  known  his 
decision  until  the  27th  of  February,  when  I  received 
from  him  a  letter  dated  the  26th  of  that  month,  in  which 
he  reverses  his  former  opinion,  and  allows  the  charges 
for  the  troops,  out  under  the  denomination  of  "  Executive 
Calls,"  between  the  14th  of  June  and  the  4th  of  Sep- 
tember, 1§14.  This  letter  is  annexed,  and  marked  (D). 
By  this  and  the  decision  of  the  20th  of  January,  the 
whole  sum  found  to  be  due  by  the  Auditor,  according 
to  his  report  in  1828,  was  agreed  to  be  allowed  to  the 
State,  subject,  however,  to  a  deduction  of  $1 1,000, 
which  was  advanced  to  the  Agent  some  years  ago 
on  general  account.  The  balance,  therefore,  was 
$419,748  26,  for  which  sum  I  forwarded  to  your  Excel- 
lency a  warrant  from  the  Treasury  upon  the  Branch 
Bank  in  Boston,  early  in  March.  Congress  appropri- 
ated the  exact  sum  found  due  by  the  Auditor;  but  as  the 
act  was  passed  for  the  purpose  of  ending  the  controver- 
sy between  the  governments,  and  as  it  seemed  clearly 
to  look  to  a  final  ascertainment  of  what  was  due,  with- 
out reference  to  the  amount,  I,  on  the  5th  of  March, 
addressed  a  letter  to  the  Secretary  of  War,  desiring  him 
to  cause  the  residue  of  the  claim  to  be  brought  under 
examination,  that  the  amount  remaining  due  according 
to  the  provisions  of  the  act  might  be  ascertained, — a 
copy  of  which  letter  is  herewith  submitted  for  your  con- 


13 

sideration,  marked  (E).  On  the  7th,  I  received  a  re- 
ply, in  which  he  declines  entering  upon  the  investiga- 
tion, alleging  a  want  of  authority,  and  advancing  the 
opinion,  in  support  of  that  decision,  that  the  act  gives 
power  to  settle  only  for  the  personal  services  of  the 
troops,  though  the  sum  which  had  just  been  paid  em- 
braced almost  every  species  of  charge  incident  to  the 
service.  This  letter  is  submitted,  and  marked  (F). 
On  the  8th,  I  rejoined,  by  a  letter  which  was  not  deliv- 
ered for  some  days,  in  consequence  of  a  severe  illness 
of  the  Secretary,  a  copy  of  which  is  annexed  and 
marked  (G).  To  this  I  received  a  reply  on  the  15th, 
in  which  the  Secretary  adheres  to  his  former  opinion : 
this  is  also  submitted  and  marked  (H).  I  left  Washing- 
ton immediately,  but  on  the  28th  of  March,  after  my 
arrival  here,  I  again  addressed  him  by  letter,  a  copy  of 
which  is  also  annexed,  and  marked  (I).  Here  the  cor- 
respondence ended.  These  letters  are  so  full  on  the 
topics  discussed  in  them,  that  1  deem  it  unnecessary  to 
advert  more  particularly  to  their  contents.  They  will 
unfold  to  your  Excellency  the  course  of  reasoning 
adopted  on  the  one  side  and  the  other.  I  have  en- 
deavored to  maintain  the  interest  and  rights  of  the 
claimants,  by  giving  to  the  Act  of  Congress  its  fair  and 
legitimate  meaning.  It  seems  to  me  very  clear  that  the 
decision  of  the  Secretary,  allowing  the  sum  which  has 
actually  been  paid,  was  founded  upon  just  conceptions 
of  the  meaning  of  the  act. 

Congress  intended  to  remove  the  controversy  be- 
tween the  governments  up@n  the  constitutional  law,  and 
leave  the  detail  of  the  settlement  to  the  Department,  to 
be  conducted  on  the  same  principles  it  would  have  been 
if  no  controversy  had  arisen ;  and  I  cannot  discover 


14 

any  thing  in  the  act,  which  justifies  the  belief  that  it  was 
designed  to  provide  for  the  payment  of  one  part  of  the 
claim,  and  to  exclude  another  part  resting  exactly  upon 
the  same  principles  ;  and  yet  such  is  the  practical  effect 
of  the  final  decision  of  the  Secretary.  My  wish  was, 
that  he  should  proceed  and  ascertain  what  further  sum 
was  due  to  the  Commonwealth,  upon  the  principles 
adopted  by  him  in  allowing  the  amount  which  he  had 
paid,  and  then,  if  necessary,  we  would  apply  to  Con- 
gress for  an  appropriation  to  cover  that  sum  as  falling 
within  the  principles  and  provisions  of  the  Act  of  May, 
1830.  It  seemed  to  me  that  his  decision  to  allow  the 
amount  reported  by  the  Auditor  was  a  clear  concession 
that  all  our  troops  were  called  out  to  repel  actual  inva- 
sion or  upon  well  founded  apprehension  of  invasion,  and 
therefore  were  to  be  paid  and  in  the  same  manner  and 
upon  the  same  principles  as  payments  had  been  made 
to  other  States  for  the  services  of  their  Militia.  The 
act  obviously  provides  for  all  such  troops,  and  the  de- 
cision of  the  Secretary  admits  that  it  does  so  provide. 
Yet  it  is  true  if  the  settlement  stops  here,  we  shall  not 
obtain  satisfaction  for  a  very  large  amount  of  disburse- 
ments which  were  made  for  services  and  things  pre- 
cisely similar  to  those  which  have  been  allowed  and 
paid.  I  cannot  better  illustrate  my  views  of  this  matter 
and  of  the  singular  attitude  in  which  we  are  placed, 
than  by  referring  your  Excellency  to  an  abstract  from 
one  of  the  Pay  Rolls,  which  will  shew  what  is  allowed  and 
what  rejected,  and  the  reasons  for  the  rejections.  A 
single  glance  at  it  will  satisfy  any  one  that  most  of  the 
objections  are  mere  matters  of  form  and  can  easily  be 
removed,  and  therefore  those  items  ought  in  fairness  to 
bo  allowed,  as  much  as  those  which  have  been  admit- 


15 

ted  to  be  within  the  provisions  of  the  act.  The  abstract 
is  annexed  and  marked  (K).  From  this  you  will  learn 
the  condition  of  a  considerable  portion  of  the  balajice 
of  the  claim.  I  still  indulge  the  hope  that  the  Secreta- 
ry will  yield  to  my  request,  and  cause  the  residue  to  be 
examined,  that  the  amount  may  be  known  and  provided 
for ;  but  whether  he  yields  to  our  wishes  on  this  head 
or  not,  I  feel  persuaded  that  Congress  cannot  refuse  to 
provide  for  the  adjustment  of  the  whole  amount  upon 
the  principles  contained  in  the  act,  according  to  the 
construction  given  to  it  by  the  payment  which  has  been 
made.  I  am  not  prepared  to  believe  that  Congress  in- 
tended, by  passing  their  act,  to  allow  pay  and  rations 
to  an  officer,  and  to  withhold  his  legal  charges  for  ser- 
vants, forage  and  travel ;  and  yet,  if  we  are  to  receive 
nothing  more,  such  will  be  the  result,  as  you  will  see 
by  examining  the  abstract  of  the  pay  roll  annexed. 

It  appears  to  me,  on  the  whole,  that  the  act,  by  the 
terms  of  it,  as  well  as  by  the  construction  given  to  it  by 
the  Secretary  in  his  communication  of  the  20th  of  Jan- 
uary last,  must  be  considered  as  placing  our  claim  on 
the  same  footing  as  the  claims  which  have  been  allow- 
ed to  other  States,  and  if  the  Secretary  shall  continue 
to  decline  proceeding  in  the  adjustment  because  of  the 
insufficiency  of  the  appropriation,  or  for  any  other 
reason,  Congress  is  bound,  upon  the  principles  of  natu- 
ral justice,  to  make  prompt  provisions  to  carry  into  full 
effect  the  principles  of  that  act. 

It  would  give  me  very  great  pleasure  to  be  able  to 
render  your  Excellency  a  better  account  of  my  steward- 
ship ;  but  if  I  have  failed  of  accomplishing  all  that  was 
desirable,  I  trust  it  has  not  come  of  any  neglect  or  in- 
attention to  my  duty  or  the  interests  of  the  State.  The 


16 

business  has  called  for  much  labor  and  investigation, 
which  I  have  felt  no  inclination  to  shun,  but  have  given 
to  it  my  most  assiduous  attention,  taking  care,  however, 
that  it  should  not  interfere  with  my  other  public  duties 
during  the  last  session  of  Congress. 

In  closing  this  Report,  your  Excellency  will  permit 
me  to  express  the  hope  that  this  communication,  with 
the  documents  appended,  will  place  the  whole  matter 
in  so  obvious  a  view,  that  it  will  be  fully  understood. 
I  have  the  honor  to  be, 

Your  obedient  servant, 

J.  DAVIS. 


(A) 
J.  H.  Eaton  to  J.  Dams. 

SIR, — I  send  you  the  enclosed  Report,  for  your 
examination.     By  thus  placing  it  in  your  hands,  you 
will  consider  it  merely  intended  for  your  consideration, 
and  not  as  being  actually  published. 
Yours  respectfully, 

J.  H.  EATON. 

Jno.  Davis,  Esq.  of  Massachusetts. 
Jan.  20,  1831. 


(A) 
Massachusetts  Claim. 

The.  Claim  of  the  State  of  Massachusetts  for  services 

• 

rendered  by  her  Militia  during  the  late  war,  have  been 
examined  in  reference  to  what  I  considered  was  the 
actual  intention  of  Congress  in  their  act  of  last  session. 
The  controversy  and  doubt  which  heretofore  have 
existed  in  relation  to  these  claims,  between  the  General 
Government  and  the  State  of  Massachusetts,  are  fa- 
miliar to  every  one.  The  Governor  had  refused  to 
place  the  troops  of  the  State  under  command  of  any 
General  Officer.  Of  this  character  are  the  claims 
3 


18 

which  are  to  be  judged  of  under  the  directions  and  pro- 
visions of  the  act  of  last  session  of  Congress. 

O 

These  claims  had  previously  been  placed  before  the 
accounting  officer  of  the  Treasury  Department,  for  ex- 
amination, to  be  reported  by  the  Secretary  of  War  to 
Congress  for  final  adjustment.  A  labored  and  tedious 
examination  was  gone  into  by  the  Third  Auditor ;  and 
in  1828  the  matter  was  brought  to  the  consideration  of 
Congress  for  their  decision.  The  report  made  presents 
these  demands  under  the  following  general  heads : — 

Ami.  claimed.       'Ami.  admitted.        Difference. 

Guards,  39,810  39  27,711  54  12,098  85 

Alarms,  37,652  86  24,141 76  13,511  10 

Calls  by  Mil.  Officers  under  ?    1Q7  .,QQ  no  , .,,  Q?fl  C1  eo «io  oa 

orders  16th  June,  1814,      \    197,48909  144,87681  52,61. 

Executive  Calls,  503,85281  227,66203  276,19078 

Defence  of  Eastport,  1812,  >      lonfUIS  fiTifi12  "5708  00 

and  Mil.  on  service  U.  S.  (     lx}'054  12  6'356  M  5'70fc 


790,869  27  430,748  26  360,121  00 

These  differences,  amounting  to  more  than  $360,000, 
are  produced  in  consequence  of  payments  which  had 
been  made  by  the  State,  for  various  inadmissible  arti- 
cles, to  wit,  Clothing,  Arms,  &c..  which  were  not  au- 
thorized by  any  existing  law ;  allowances  which  have 
not  been  conceded  to  other  States,  and  which,  conse- 
quently, ought  not  to  be  admitted  in  the  present 
instance. 

The  act  of  the  31st  of  May,  1830,  directs  the  adjust- 
ment of  these  claims,  under  the  superintendence  of  the 
Secretary  of  War,  upon  the  following  conditions  : — 

1.  "Where  the  Militia  of  the  State  were  called  out 
to  repel  actual  invasion,  or  under  a  well-founded  appre- 
hension of  it ; — provided  their  numbers  were  not  in  un- 
due proportion  to  the  exigency." 


19 

2.  "  Where  they  were  called  out  by  the  authority  of 
the  State,  and  afterwards  recognised  by  the  Federal 
Government." 

3.  "  Where  they  were  called  out  by,  and  served  un- 
der the  requisition  of  the  President  of  the  United  States, 
or  of  any  officer  thereof." 

The  essential  difficulty,  and  which  has  involved  much 
and  close  examination,  is  in  reference  to  the  class  of 
cases  under  the  first  general  head  prescribed.  These 
are  most  numerous,  and  would  present  increased  em- 
barrassment, but  for  the  opinion  possessed,  that  in  en- 
acting the  law  of  May,  1830,  Congress  intended,  that 
the  objections  heretofore  arising,  and  which  are  pre- 
sented in  the  correspondence  of  the  Secretary  of  War 
and  Governor  of  Massachusetts  during  the  late  war, 
were  to  be  discarded.  The  right  and  privilege  of  both 
parties  (the  General  and  State  Governments)  to  exer- 
cise control  over  the  Militia,  in  a  period  of  war,  as  they 
were  then  argued  and  maintained,  are  not  (as  it  appears 
to  me)  matters  now  to  be  considered.  The  Governor 
of  Massachusetts,  acting  upon  the  advice  of  his  Coun- 
cil, and  in  reference  to  the  alleged  interest  of  the  State, 
did  decline  placing  the  Militia  under  the  control  of  the 
General  Government ;  and  on  the  7th  of  September, 
1814,  in  communicating  this  determination,  and  assign- 
ing his  reasons,  employs  this  language  : — "  A  few  weeks 
since,  agreeably  to  the  request  of  General  Dearborn,  I 
detached  1100  militia,  for  three  months,  for  the  defence 
of  our  sea-coast,  and  placed  them  under  his  command, 
as  Superintendent  of  this  Military  District ;  but  such 
objections  and  inconveniences  have  arisen  from  that 
measure,  that  it  cannot  now  be  repeated.  The  Militia 
called  out  on  this  occasion  will  be  placed  under  the 


20 

immediate  command  of  a  Major  General  of  Militia.  I 
will  thank  you,  Sir,  to  consult  with  the  President,  and  in- 
form me  whether  the  expenses  thus  necessarily  incurred 
for  our  protection  will  be  ultimately  reimbursed  to  this 
State  by  the  General  Government." 

This  letter  was  written  three  days  after  the  date  of 
Gen.  Dearborn's  communication  to  Gov.  Strong,  asking 
for  a  detail  of  4650  Infantry  and  Artillery,  and  was  ad- 
dressed to  the  Secretary  of  War. — On  the  17th  of  the 
same  month  an  answer  was  returned,  from  which  the 
following  is  extracted  : — 

"  If  the  force  which  has  been  put  into  service  has 
been  required  by  Major  General  Dearborn,  or  received 
by  him,  and  put  under  his  command,  the  expense  at- 
tending it  will  be  paid  by  the  United  States. — If  this 
force  has  been  called  into  service  by  authority  of  the 
State,  independently  of  Major  General  Dearborn,  and 
be  not  placed  under  him,  as  Commander  of  the  District, 
the  State  of  Massachusetts  is  chargeable  with  the  ex- 
pense, and  not  the  United  States. — Any  claim  which  the 
State  may  hay^e  to  reimbursement  must  be  judged  of 
hereafter  by  the  competent  authority,  on  a  full  view  of 
all  the  circumstances  attending  it. — It  is  a  question 
which  is  beyond  the  authority  of  the  Executive." 

Here  is  a  declaration  by  the  Governor,  which  had 
also  previously  been  made,  that  the  Militia  of  the  State 
could  not  be  placed  under  the  control  of  the  United 
States,  or  made  subject  to  the  command  of  any  officer 
of  the  Government ; — and  in  reply  is  an  avowal  on  the 
part  of  the  Secretary  of  War  that  the  State  "  is  charge- 
able with  the  expense,  and  not  the  United  States."  This 
ground  of  difference,  the  act  of  Congress  removes. 

These  circumstances,  and  indeed  the  entire  facts  be- 


21 

longing  to  the  claim,  were  before  Congress  for  consider- 
ation on  the  30th  of  May  last,  when  the  law  for  their 
adjustment  was  passed,  which  declares,  "  that  the  proper 
accounting  officers  of  the  Treasury,  under  the  superin- 
tendence of  the  Secretary  of  War,  be,  and  they  are 
hereby  authorized  and  directed  to  credit  and  settle  the 
claims  of  the  State  of  Massachusetts  against  the  United 
States,  for  the  services  of  her  Militia  during  the  late 
war,"  under  certain  conditions  and  provisions  which 
already  have  been  stated. 

In  discharging  the  trust  given  to  me  under  this  act,  I 
have  not  felt  myself  called  upon  to  consider  the  claim 
in  reference  to  the  objections  which  were  originally 
made, — but  simply  to  determine,  under  the  provisions 
of  the  act,  if  at  the  time  those  claims  arose,  and  when 
the  Militia  were  called  out,  there  was  "  an  actual  inva- 
sion, or  a  well-founded  apprehension  of  invasion  ;"  and 
also,  whether  "  the  numbers  were  in  undue  proportion 
to  the  exigency." — To  determine  these,  is  all  that  I  feel 
myself  called  upon,  or  required  to  do. 

There  was  no  actual  invasion,  nor,  seemingly,  were 
there  any  circumstances  to  authorize  a  well-founded 
apprehension  of  one,  during  a  portion  of  the  time. — 
Early  as  the  middle  of  June,  1814,  subsequent  to  which 
period  those  claims  originated,  application  was  made  to 
Major  General  Goodwin,  by  the  citizens  of  Wareham, 
setting  forth  that  the  British,  a  few  days  before  had 
landed,  and  burnt  a  factory  and  several  vessels. — Many 
of  the  towns,  impressed  with  like  apprehensions,  prefer- 
red similar  requests.  The  town  of  Brewster  was  put 
under  contribution,  and  had  to  pay  a  large  sum  to  pre- 
vent the  burning  of  valuable  salt-works  which  were 
erected  there.  British  ships  of  war  were  frequently  seen 


22 

hovering  along  the  coast,  and  occasional  landings  were 
made,  and  much  damage  done; — but  they  were  partial, 
momentary  descents,  for  marauding  purposes  merely. 
Apprehension  of  invasion  was  confined  to  the  citizens 
of  Massachusetts.  At  this  time  the  Government  did  not 
entertain  it. — It  only  looked  to  such  a  result  as  probable 
and  prospective. 

On  the  13th  of  June,  1814,  Commodore  Bainbridge, 
apprehending  a  probable  descent  on  the  Navy  Yard 
at  Charlestown,  from  some  British  vessels, — solicited, 
that  assistance  might  be  furnished  him.  He  says,  "  The 
force  of  the  enemy  in  Boston  Bay  justifies,  in  my  opin- 
ion, apprehensions  of  an  attack  being  made  on  this 
place,  [Navy  Yard]  and  calls  for  united  exertions  to  de- 
fend it.  The  important  public  property  entrusted  to 
my  charge,  might  in  such  an  event  suffer  severely,  and 
would  in  a  considerable  degree  expose  the  towns  of  Boston 
and  Charlestown."  The  guards  furnished  under  this  re- 
quest were  discharged  on  the  23d  of  June.  Commodore 
Bainbridge  remarks  that  "  they  can  at  present  be  dispens- 
ed with."  Whether  this  course  was  taken  because  he  be- 
lieved that  no  further  apprehensions  of  attack  or  invasion 
were  to  be  apprehended,  does  not  appear  ; — but  about 
the  same  time,  22d,  Col.  Osgood's  regiment  was  order- 
ed into  service, — proving  thereby  that  the  fear  of  the 
citizens,  at  least,  had  not  subsided.  This  regiment  was 
also  discharged  the  30th  of  July  following.  On  the  4th 
of  July  the  Secretary  of  War  wrote  to  the  Governor  of 
the  State.  He  does  not  advert  to  the  probability  of  an 
immediate,  but  of  an  invasion  that  might  happen  there- 
after. He  says,  "  The  late  pacification  in  Europe  offers 
to  the  enemy  a  large  disposable  force,  naval  and  mili- 
tary, and  with  it,  the  means  of  giving  to  the  war 


23 

here,  a  character  of  new  and  increased   activity  and 
extent." 

Upon  these  points  we  have  no  evidence  of  the  opin- 
ions which  were  entertained  by  the  constituted  authori- 
ties of  the  State.  Orders  had  been  given  by  the  Gov- 
ernor, directing  the  Major  Generals  of  Divisions,  on  the 
happening  of  any  emergency,  to  call  forth  the  troops  at 
their  own  discretion.  The  different  and  respective 
towns  occasionally  made  their  demands,  and  the  Major 
Generals  acceded  to  them,  under  their  general  instruc- 
tions, without  any  immediate  or  direct  authority  from 
the  Governor.  The  fact  of  a  probable  invasion,  how- 
ever, on  the  grounds  presented,  being  admitted,  the 
question  to  be  settled,  is,  whether  the  numbers  called 
for,  "  were  in  undue  proportion  to  the  exigency." 

Those  troops  who  are  under  the  head  of  guards  and 
alarms,  whether  considered  as  to  time  or  numbers,  are 
not  in  undue  proportion.  Nor  are  troops  under  the  class 
of  Executive  calls,  which  [is]  the  larger  proportion  of 
the  demand,  so  to  be  considered.  The  latter  came  into 
the  field  at  a  time  when  general  fear  and  apprehension 
pervaded  our  entire  coast.  Rumor,  in  various  forms, 
told  of  a  large  force  which  was  about  to  leave  England, 
destined  to  move  against  this  country ;  but  at  which 
point  to  be  landed  none  could  tell,  though  apprehension 
suggested  it  to  be  at  any  and  every  point.  Previous  to 
this  time,  Eastport  had  been  taken  possession  of  by  the 
enemy ;  though  in  this  there  was  nothing  indicative  of 
invasion,  or  as  being  for  a  purpose  other  than  Fitzherbert, 
the  Lieut.  Col.  then  commanding,  avowed  it  to  be.  In 
a  letter  addressed  by  him  to  Brigadier  General  Brewer, 
on  the  12th  of  July,  the  day  after  the  surrender  of  the 
post,  and  which  letter  he  states  was  written  by  direction 


24 

of  Sjr  John  Sherbrook,  "  for  the  information  of  the  peo- 
ple of  Robinstown,  and  elsewhere  on  the  main  land," 
he  observes,  "  the  object  of  the  British  Government  is 
to  obtain  possession  of  the  islands  of  Passamaquoddy 
Bay,  in  consequence  of  their  being  considered  within 
our  boundary  line  :  that  they  have  no  intention  of  carry- 
ing on  offensive  operations  against  the  people  residing 
on  the  continent,  unless  their  conduct  should  oblige  us 
to  resort  to  the  measure  ;  and  in  the  event  of  their  re- 
maining quiet,  they  will  not  be  disturbed  either  in  their 
persons  or  property."     This  official  communication  was 
immediately  made  known  to  the  Governor  of  Massachu- 
setts.    It  shows  the  intention  of  the  enemy,  that  no  at- 
tack was  meditated  "  against  the  people  residing  on  the 
continent ;"  that  the  object  simply  was,  to  take  posses- 
sion of  those  islands,  which,  by  the  original  treaty  of 
boundary,  was  believed  to  belong  to  Great  Britain.     It 
was  subsequent  to  this  period  that  serious  apprehensions, 
and  upon  reasonable  grounds,  began  to  be  entertained  ; 
and  when  preparation  against  assault  appeared  indeed 
necessary.     Late  in  August,  Castine  was  taken  posses- 
sion of,  and  occupied  ;  and  about  the  same  time,  the 
city  of  Washington,  the  Capital  of  the  country,  was  at- 
tacked,  carried,    and    its   public   buildings   destroyed. 
Other    neighbouring  cities  were  threatened.     At  this 
moment,  and  under  these  circumstances,  the  calls  under 
consideration,  by  the  Executive  of  Massachusetts  were 
made.     These  I  consider  to  be   within  the  meaning  of 
the  act  of  the  last  session,  which  was  passed  in  refer- 
to  this  subject,  that  there  were  grounds  to  apprehend 
invasion,  and  that  the  number  of  troops  called  for,  and 
placed  in  service  then,  was  not  unsuited  to  the  reason- 
able peril — the  exigency  of  the  occasion. 


25 

That  part  of  the  claim  presented,  about  which  doubts 
have  been  entertained,  embraces  calls  of  the  Militia 
which  were  made  by  the  State  Major  Generals,  under 
an  order  of  the  14th  of  June,  and  in  pursuance  of  which 
a  considerable  demand  arises.  Upon  this  part  of  the 
subject  I  have  advanced  with  much  distrust,  not  feel- 
ing entirely  and  altogether  satisfied  with  the  conclusion 
to  which  I  have  arrived. 

At  the  period  when  this  call  was  made,  is  found  the 
declaration  of  Commodore  Bainbridge,  that  the  troops 
which  he  had  solicited  for  the  defence  of  Charlestovvn, 
and  for  protection  against  a  probable  attack  upon  the 
Navy  Yard,  "  can  at  present  be  dispensed  with."  This 
was  an  important  point.  The  Independence  74  was 
there  building,  and  much  public  property  was  at  the 
Navy  Yard,  the  destruction  of  which  could  not  but  be 
of  high  consideration  with  the  enemy  ;  and  yet,  on  the 
23d  of  June,  the  Commodore  dismisses  these  troops,  in 
whom  he  had  great  confidence,  from  service.  If  there 
had  been  any  probability  of  an  attack,  or  an  invasion, 
so  qualified  and  discreet  an  officer  as  Commodore  Bain- 
bridge,  is  every  where  known  and  admitted  to  be,  would 
not  have  proceeded  with  such  want  of  precaution,  as 
this  act  would  evidence. 

During  the  months  of  June  and  July,  at  different 
points  in  the  State,  more  than  one  thousand  United 
States  troops  were  stationed ;  and  in  the  month  of 
August  were  increased  to  2060.  These,  with  the  auxili- 
ary force,  which  under  the  head  of  Alarms  and  Guards, 
had,  during  the  time  been  called  out,  and  which  were 
in  service,  appear  to  me  to  have  been  fully  sufficient  for 
the  exigency  ;  added  to  which  there  were  detachments 

4 


26 

of  Militia  during  the  time,  in  service,  under  the  imme- 
diate control  and  command  of  General  Dearborn. 

It  does  not  appear  that  the  enemy  was  in  such  force 
as  to  attempt  an  invasion.  Partial  descents  along  the 
coast,  in  their  barges,  in  inconsiderable  strength,  were 
the  only  dangers  to  be  apprehended  ;  and  these  wore 
to  be  met  and  repelled,  at  all  other  than  important 
points,  by  the  Militia  of  the  neighborhood,  held  in  read- 
iness, but  not  called  into  service.  They  were  fully 
competent  to  such  service,  and  should  have  been  relied 
upon  to  perform  it.  The  governor,  in  a  communication 
made  to  the  Secretary  of  War  on  the  5th  of  August, 
1812,  employs  language  which  justifies  this  assumption. 

He  says,  "  Every  harbor  or  port  within  the  State  has 
a  compact  settlement,  and  generally  the  country  around 
the  harbor  is  populous. 

"  In  Boston,  the  Militia  is  well  disciplined,  and  could 
be  mustered  in  an  hour  upon  any  signal  of  an  ap- 
proaching enemy ;  and  in  six  hours  the  neighboring 
towns  could  pour  in  a  greater  force  than  an  invading 
enemy  will  bring  against  it. 

"  The  same  remark  applies  to  Salem,  Marblehead, 
and  Nevvburyport,  places  where  harbors  render  an  inva- 
sion next  to  impossible. 

"  Kennebunk  is  unassailable  by  any  thing  but  boats, 
which  the  numerous  armed  population  is  competent  to 
resist.  Portland  has  a  Militia  and  independent  corps, 
sufficiently  numerous  for  its  defence  ;  and  the  same  is 
the  case  with  Wiscasset  and  Castine. 

"  Against  predatory  incursions,  the  Militia  of  each 
place  would  be  able  to  defend  their  property,  and  in  a 
very  short  time  would  be  aided,  if  necessary,  by  the 
Militia  of  the  surrounding  country.  Considering  the 


27 

state  of  the  Militia  in  this  Commonwealth,  1  think  there 
can  be  no  doubt  that  detaching  a  part  of  it,  and  distrib- 
uting it  into  small  portions,  will  tend  to  impair  the  de- 
fensive power." 

It  will  be  perceived  that  the  Governor  has  enumerated 
most  of  the  principal  towns,  and  given  the  assurance 
that  within  themselves  they  possessed  the  capacity  of 
ample  defence  against  any  predatory  system  of  war- 
fare ; — and  none  other,  during  the  period  adverted  to, 
was  to  be  apprehended.  Serious  invasion  was  not 
thought  of;  or  at  least  there  were  no  circumstances,  no 
show  of  actual  force  to  induce  to  such  a  conclusion. 

Under  all  the  circumstances  presented,  therefore,  I 
cannot  conclude  otherwise  than  that  the  force  employ- 
ed by  the  State,  under  the  calls  of  June,  1814,  were,  to 
the  4th  of  the  month  of  September,  "in  undue  propor- 
tion to  the  exigency,"  and  hence  do  not  feel  myseli  at 
liberty,  during  that  period,  to  sanction  the  allowance. 
It  is  indeed  but  matter  of  opinion,  which  may  or  may 
not  be  correct ;  yet  it  is  that  which  the  law  1  am  con- 
sidering makes  the  touchstone  of  my  action  and  decis- 
ion on  the  case.  I  may  be  charged  with  prejudice !  I 
have  none.  Under  the  same  circumstances,  with  the 
law  which  creates  my  authority,  and  the  facts  which 
arise,  I  should  come  to  the  like  conclusion,  were  the 
claim  presented  from  my  own  State.  Acting  in  a  public 
capacity,  I  have  no  feelings  to  entertain — no  prejudice 
to  indulge. 

My  decision  then  is,  that  the  claims  under  the  class 
of  Guards  and  Alarms  be  "  settled  and  credited,"  sub- 
ject to  any  exceptions  which  have  been  made  in  cases 
of  other  States.  These  acted  under  sudden  emergen- 
cies, were  auxiliaries  to  the  forces  of  the  United  States, 


28 

were  videttcs  to  give  notice  of  danger,  and  of  its  ap- 
proach, and  at  no  time  appear  to  have  been  in  undue 
proportion  to  the  exigency. 

Executive  calls  will  be  admitted  under  the  same  rule 
of  settlement,  for  the  reasons  already  given. 

The  report  of  the  Third  Auditor,  of  January,  1828, 
will  form  the  basis  of  the  adjustment  to  be  made.  From 
the  admissible  amount  then  stated,  to  wit,  $430,748  26, 
there  will  be  subtracted  such  items  of  that  estimate  as 
by  this  report  are  disallowed. 

The  two  companies  called  out  the  15th  of  Septem- 
ber, 1813,  for  the  defence  of  Portland,  are  not  to  be 
deducted ;  nor  will  the  Guard  which  acted  with  Com- 
modore Bainbridge ;  these  being  troops  which  served 
under  an  officer  of  the  government.  Any  payments 
which  have  been  made  by  the  United  States,  on  ac- 
count of  Militia  service  in  the  State,  will  be  deducted. 

J.  H.  EATON. 

John  Davis,  Esq.,  Rep.  in  >  19th  Jan.  1831. 

Congress  from  Massachusetts.  > 


(B) 

Extract  of  a  Letter  from  Mr.  Davis  to  the  Secretary  of 

War,  dated 

Washington,  Jan.  26,  1831. 

"  Since  I  had  the  pleasure  of  seeing  you,  I  have  as- 
certained that  Massachusetts,  including  Maine,  had,  in 
the  year  1814,  371,824  tons  of  shipping.  Boston  had 


29 

107,199  tons,  Portland  31,913,  Wiscasset  16,715,  Wal- 
doborough  16,292,  New  Bedford  23,109,  Gloucester 
(Cape  Ann)  8,953,  Salem  28,847,  Newburyport  19,890. 
You  will  see  by  this  statement,  as  a  very  large  portion 
of  the  vessels  were  then  in  port,  the  vast  amount  of 
property  at  hazard.  New  Bedford  is  one  of  the  places 
attacked  in  June  by  nine  barges,  containing  400  men. 
The  torch  applied  to  this  shipping  would  do  the  work 
of  destruction  very  quick,  and  nothing  short  of  artillery 
could  prevent  it.  The  inhabitants  of  New  Bedford 
thought,  and  surely  correctly,  that  there  was  no  safety 
without  an  organized  military  force,  ready  to  act  at  all 
times,  while  the  enemy  were  in  their  waters,  as  the 
fort  had  but  7  guns,  and  about  20  men  and  boys  in  it. 
General  Lincoln  says  it  could  only  be  defended  outside 
of  its  walls. 

"  You  will  also  appreciate  the  danger  and  the  prop- 
erty at  hazard  in  Gen.  King's  Division,  when  you  look 
at  the  amount  of  shipping  at  Bath,  Wiscasset,  &c., 
especially  when  it  is  considered  that  the  enemy  had 
avowed  his  purpose  of  destroying  this  property.  • 

"  You  can  learn  something  of  the  condition  of  the 
forts,  and  of  the  amount  of  property,  from  Gen.  King's 
letters  published  in  Doc.  83,  18th  Congress,  pages  159, 
160.  You  will  also  see  on  this  head  his  views,  at  pages 
38,  39,  of  the  Documents  I  left  with  you. 

"  I  need  not  add  that  the  shipping,  to  say  nothing  of 
the  other  property,  on  Boston  Bay,  was  worth  several 
millions  of  dollars.  When  we  add  to  all  this  the  fact, 
that  the  enemy  were  almost  daily  assailing  the  country, 
at  some  one  or  more  of  its  exposed  points,  burning  the 
shipping,  and  in  several  instances  carrying  away  or  de- 
stroying other  property,  it  seems  to  me  the  people 


30 

had  most  justly  a  well  founded  apprehension  of  in- 
vasion. 

"  They  saw  also  great  danger  in  the  circumstance 
that  the  enemy  had  a  large  disposable  force,  which 
could  be  easily  and  in  a  very  short  time  concentrated, 
for  it  moved  on  the  wings  of  the  wind.  This  was  fully 
proved  when  Castine  fell  into  their  hands. 

"  I  could  add  much  to  strengthen  this  view  of  the 
subject,  but  I  will  only  trouble  you  with  one  remark. 
It  appears  most  abundantly,  that  the  State  was  most 
anxious  to  avoid  any  except  absolutely  indispensable 
expense,  and  that  the  officers  to  whom  authority  was 
confided  were  directed  not  to  keep  troops"  in  service 
unless  the  public  safety  called  for  them.  They  were 
on  the  spot,  and  saw  the  danger,  and  could  form  a  more 
accurate  estimate  than  any  one  can  who  has  less  means 
of  arriving  at  the  truth." 


(C) 
/.  Davis  to  J.  H.  Eaton. 

Washington,  Feb.  5,  1831. 

SIR, — In  my  conversation  with  you,  and  also  in  a 
hasty  note  I  addressed  you  on  the  26th  ult.  I  pointed 
out  the  condition  of  the  State  of  Massachusetts  in  the 
year  1814,  and  the  dangers  to  which  she  was  exposed, 
and  I  now  beg  leave  again  to  advert  to  the  same  facts 
with  some  additional  remarks. 

1st.  I  called  your  attention  to  the  great  extent  of 
maritime  frontier,  being  nearly,  if  not  quite,  600  miles 
exposed  to  depredations. 


31 

2d.  I  described  the  character  of  that  coast,  pointing 
out  the  facilities  it  afforded  to  an  enemy  of  superiour 
naval  force  to  wage  a  destructive  war  upon  us,  by  reason 
of  the  numerous  undefended  points,  and  the  numerous, 
safe  and  convenient  harbours  which  he  could  enter  and 
occupy  at  pleasure,  and  thus  be  enabled  to  maintain  his 
cruising  ground,  in  all  kinds  of  weather,  as  he  did.  I 
referred  you  also  to  the  maps  of  that  territory,  which 
show  how  it  is  indented  with  bays,  rivers,  and  harbours, 
giving  access  to  the  interiour,  by  reason  of  the  great 
depth  of  water,  and  by  a  tide  of  10  or  19.  feet  in  its 
usual  flux  and  influx — and  stated  also  what  is  well  known, 
that  many  of  these  harbours  and  passages  have  upon 
them  very  little  population,  and  are  and  were  wholly 
undefended  by  fortifications. 

3d.  I  stated  that  the  shipping  of  Massachusetts  in  the 
year  1814  amounted  to  371,824  tons,  which  was  proba- 
bly mostly  in  port,  and  scattered  along  this  frontier, 
where  it  belonged,  a  great  amount  of  it  being  in  places 
relying  wholly  on  the  militia  for  protection. 

4th.  I  adverted  to  the  fact,  that  in  1814,  by  reason  of 
the  peace  in  Europe,  the  war  here  was  prosecuted  with 
increased  vigor,  our  coast  being  rigorously  blockaded  by 
a  great  marine  force  which  had  a  two-fold  object ;  first 
to  cut  up  all  trade  and  intercourse  by  water  ;  and  second, 
to  destroy  all  shipping,  whether  in  port  or  out  of  port, 
as  well  as  to  seize  upon  and  occupy  such  weak  points 
as  could  not  be  defended,  the  possession  of  which  would 
annoy  us  and  interrupt  our  intercourse. 

5th,  I  show  from  the  documents  and  the  history  of 
the  times,  that  during  the  Summer  of  1814,  a  large  ar- 
mament well  prepared  and  equipped  with  men,  arms, 
boats,  tenders,  &c.  &c.  was  constantly  hovering  on  our 


32 

coast,  menacing  our  towns  and  shipping;  in  many  in- 
stances destroying  the  latter,  and  constantly  attempting 
to  land,  or  penetrate  our  harbours  and  rivers  for  the 
wasting  purposes  of  war.  I  also  invited  your  attention 
to  another  important  fact,  namely,  that  this  force  when 
concentrated,  constituted  a  powerful  armament,  and  that 
it  was  in  the  power  of  the  enemy  to  draw  together  a 
fleet  made  up  of  the  vessels  scattered  along  the  coast  of 
Massachusetts,  and  those  usually  at  the  rendezvous  at 
Halifax,  which  would  have  carried  dismay  and  destruc- 
tion with  it,  in  defiance  of  any  force  in  the  service  of 
the  country,  in  the  Summer  of  1814,  and  that  such  a 
concentration  might  be  made  before  the  news  of  the  in- 
tent could  reach  the  point  endangered  ;  for  all  commu- 
nication by  sea  with  our  people  was  at  an  end. 

6th.  I  also  desired  you  to  look  at  the  evidence  derived 
from  Gen.  King  and  others,  by  which  it  appeared  that 
the  forts  of  the  United  States  in  many  places  were  de- 
cayed,— in  some,  deserted  because  incapable  of  being 
defended, — in  others,  only  nominally  manned,  the  troops 
having  been  withdrawn  and  embodied  with  the  army. 
What  the  actual  number  left  was,  or  how  it  was  distribu- 
ted, I  have  not  by  me  any  means  of  knowing,  except 
from  the  statements  contained  in  your  instructions  to  the 
accounting  officers  of  the  Treasury. 

Having  pointed  out  these  general  facts  which  seem  to 
justify  maintaining  the  force  which  was  out  in  the  Sum- 
mer of  1814,  I  then  invited  your  attention  to  the  par- 
ticular circumstances  which  attended  the  charges  for 
troops  at  some  of  the  important  points,  and  believing 
that  a  brief  review  of  that  ground  will  not  be  unaccept- 
able, as  it  will  aid  in  ascertaining  the  truth,  I  will  ven- 
ture again  to  trouble  you  with  some  remarks  upon  it. 


33 

The  troops  objected  to  serve  under  executive  calls  be- 
tween the  14th  of  June,  1814,  and  the  4th  of  September 
following,  and  the  above  observations  show  the  general 
state  and  condition  of  the  country,  and  the  mode  of  war- 
fare. We  will  now  see  what  was  done  at  some  of  the 
more  important  places,  and  the  reasons  for  doing  it. 

Under  Executive  calls,  marked  (C)  in  Document  3. 
page  498  published  by  the  Senate  at  the  first  Session  of 
the  21st  Congress,  are  charges  for  troops  who  served  at 
New  Bedford  and  Fair  Haven  in  June  and  July.  New 
Bedford  which  lies  on  a  river  which  discharges  itself  into 
Buzzard's  Bay,  had  been  largely  concerned  in  the  whale 
fishery,  and  had  then  in  port,  as  Col.  Lincoln  states, 
more  than  50  ships,  besides  a  great  number  of  other 
vessels  which  tempted  the  cupidity  of  an  enemy  who  was 
a  rival  ia  that  business.  The  harbour  was  protected  by 
a  small  fort  of  7  guns,  manned  as  the  same  officer  in- 
forms us,  with  23  men  and  boys.  On  the  13th  of  June 
the  enemy,  who  with  several  ships  of  war,  was  constantly 
cruising  off  the  coast  in  this  neighbourhood,  made  a 
sudden  descent  about  day  light,  in  the  morning,  upon 
the  place  with  9  barges  containing  400  men,  with  the 
intent  to  destroy  this  property.  It  will  be  recollected 
that  previous  to  this  time,  Falmouth  had  been  cannona- 
ded by  the  Nimrod :  Wareham  had  been  invaded,  the 
shipping  destroyed,  and  a  factory  set  on  fire. 

These  were  towns  in  the  same  portion  of  the  State. 
On  the  3d  of  July,  Col.  Lincoln  says  they  had  thrown 
up  a  new  battery,  and  "  the  enemy  are  in  sight  of  the 
harbour  continually." 

On  the  21st  of  July,  he  says,  a  barge  with  30  or  40 
men  was  sent  into  West  Port,  but  was  beat  off  before 
the  shipping  was  destroyed.  He  also  observes,  that 

5 


34 

"  the  British  force  in  our  sound  has  been  recently  aug- 
mented." This  force,  as  I  understand  the  matter,  block- 
aded this  part  of  the  coast,  and  continued  active  in  its 
exertions  to  do  mischief  through  the  season.  I  will  not 
go  more  into  detail  of  the  facts,  for  it  seems  to  me  there 
can  be  no  doubt,  that  the  circumstances  justified  the 
Major  General  in  calling  out  troops  to  defend  these 
towns,  and  he  would  have  been  criminally  guilty  if  he 
had  failed  to  do  it.  It  will  be  borne  in  mind  that  Gen. 
Dearborn  confirms  this  view,  for  on  the  8th  or  9th  of 
August  he  stationed  at  Fair  Haven  a  force  of  90  men, 
when  most  if  not  all  the  troops  ordered  out  by  the  mili- 
tia officers  were  dismissed.  Now,  if  these  troops  are 
not  to  be  allowed,  it  follows  that  New  Bedford  was  not 
entitled  to  any  measures  of  defence  through  all  the  peril 
which  existed  antecedent  to  the  8th  or  9th  of  August,  for 
there  were  no  troops  then  except  a  few  guards  at  Fair 
Haven  and  those  in  the  fort.  The  descents  of  a  marine 
force  are  generally  sudden,  and  the  work  of  destruction 
is  over  before  the  assailed  recover  from  surprise.  An 
armament  spreads  its  flag  in  your  waters  in  the  morning, 
and  before  mid  day  it  is  gone  you  know  not  where,  to 
surprise  some  other  place,  and  will  return  when  you 
least  expect  it,  and  steal  upon  you  in  the  night,  or  at  a 
moment  when  you  are  least  prepared  to  meet  it.  These 
movements  are  so  rapid,  that  there  is  no  safety  short  of 
a  constantly  organized  force,  ready  to  meet  and  repel 
assaults  at  all  times.  You  will  not  be  surprised  when 
you  read  in  the  documents  that  the  inhabitants  were  in 
a  state  of  alarm  and  consternation,  nor  will  you  doubt 
what  can  be  proved  by  thousands  of  living  witnesses, 
that  voluntary  service  was  performed  by  vast  numbers 
of  our  citizens  through  the  perilous  periods  of  1814,  for 


35 

which  no  pay  was  ever  desired  or  sought  for.  That 
New  Bedford  and  the  towns  in  that  vicinity  were  in 
eminent  jeopardy  in  the  Summer  of  1814,  from  the  ene- 
my, does  not  admit  of  doubt,  and  that  their  shipping 
would  have  fallen  a  victim  to  the  marauding  disposition 
of  the  enemy  if  he  had  not  been  repelled  by  the  Militia 
is  equally  clear.  The  number  of  persons  who  were  out 
as  guards,  seem  in  the  judgment  of  all  the  officers  and 
citizens  to  have  been  considered  wholly  inadequate  to 
arrest  the  enterprises  of  the  enemy.  The  only  question 
therefore,  is  whether  Col.  Lincoln  called  out  too  much 
force.  By  what  rule  shall  this  be  measured  ?  Who  can 
tell  when  an  attack  is  to  be  made  from  ships  of  war,  the 
precise  number  of  men  necessary  to  repel  the  assailant  ? 
If  the  force  is  too  small,  and  is  overcome,  the  calami- 
ties which  ensue  in  the  loss  of  life  and  property  can 
better  be  imagined  than  described.  The  dishonor  too 
to  the  country  must  stand  as  long  as  there  is  a  faithful 
record  of  history.  It  seems  to  me  clear  that  it  is  better 
to  have  too  much  force  than  too  little.  We  are  to  look 
at  the  thing  at  hazard,  the  lives  and  property  of  our 
fellow  citizens,  both  of  which  the  government  stands 
obligated  to  protect,  if  it  be  in  its  power  to  do  so.  We 
learn  at  the  very  first  onset  at  New  Bedford,  400  men 
were  detached  from  the  enemy's  shipping  to  make  the 
assault,  and  it  appears  his  force  was  afterwards  increased. 
Now  the  Militia  had  not  only  two  tovyns  to  defend  there, 
one  on  each  side  of  the  river,  but  many  other  points 
which  commanded  passes  in  other  directions  and  to 
other  places. 

This  force  of  the  enemy  continued  off  these  ports  for 
a  long  time,  and  perhaps  at  some  moments  of  great 
alarm,  the  number  of  men  might  have  been  greater  than 


36 

the  result  proved  to  be  necessary,  but  at  no  time  was  it 
equal  to  the  number  of  the  enemy  ;  and  when  we  con- 
sider the  great  difficulty  in  determining  the  precise  num- 
ber necessary  to  give  efficient  protection  to  so  important 
a  place  as  New  Bedford,  it  seems  to  me  the  government 
is  called  upon  by  every  patriotic  motive  to  be  liberal,  if 
they  mean  the  frontiers  shall  be  protected  in  time  of 
war.  To  say  to  the  soldier  who  has  promptly  met  and 
repelled  an  invader,  he  cannot  be  paid  because  there 
were  enough  without  him,  would  tend  to  extinguish  the 
patriotic  ardor  of  our  citizens,  and  make  men  mercenary 
by  the  exercise  of  a  mercenary  spirit  in  the  government. 
Before  pay  is  withheld  on  this  ground,  there  should  be 
a  plain  palpable  error  on  the  part  of  the  officer  com- 
manding the  station — the  excess  of  troops  should  be 
obvious.  This  can  hardly  be  said  of  the  corps  at  New 
Bedford,  for  the  officer  in  immediate  command  thought 
he  had  none  too  many  for  the  emergency,  and  so  thought 
the  people.  They  were  on  the  spot  and  saw  and  appre- 
ciated the  dangers  with  more  exactness  than  persons  at 
a  distance.  They  saw  and  comprehended  the  various 
ways  in  which  this  force  might  be  brought  to  bear  upon 
them,  and  surely  great  deference  should  be  paid  to  their 
opinions.  I  will  dismiss  this  part  of  my  observations  by 
remarking  that  New  Bedford  and  the  neighbouring  towns 
must  have  fallen  victims  to  the  desolating  hand  of  war 
long  before  Sept.  1814,  if  the  Militia  had  not  defended 
them.  When  danger  first  comes  upon  us,  it  creates 
more  excitement  and  apprehension,  than  when  we  be- 
come accustomed  to  it  and  learn  how  to  meet  it ;  and 
there  might  have  been  moments  of  alarm,  when  the 
people  in  that  part  of  the  country  magnified  the  peril ; 
but  on  a  calm  review  of  the  circumstances,  I  cannot 


37 

persuade  myself  that  they  did  not  act  wisely  and  judi- 
ciously. 

Passing  over  many  small  places  which  it  would  be 
too  tedious  to  mention  in  detail,  I  will  now  notice  Bos- 
ton. The  services  here  objected  to  fall  under  the  class 
(D),  page  83,  of  the  same  document.  We  have  it  from 
Commodore  Bainbridge,  who  commanded  at  the  Navy 
Yard  at  Charlestown  (which  it  will  be  observed  is  for 
all  military  purposes  a  part  of  Boston),  that  on  the  13th 
of  June  the  danger  was  so  pressing  as  "  to  call  for  uni- 
ted exertions  to  repel  it."  A  company  was  placed  under 
his  directions,  and  on  the  23d  of  the  same  month,  in  a 
letter  to  Capt.  Sullivan,  he  agrees  to  dispense  with  the 
services  of  that  company.  It  has  been  inferred  from 
this,  that  the  danger  had  subsided.  I  am  not  in  posses- 
sion of  the  letter  from  Capt.  Sullivan  to  the  Commo- 
dore, but  I  infer  from  the  reply  that  an  application  was 
made  for  a  discharge  of  this  company.  They  were 
business  men  from  the  city,  and  doubtless  were  in  ser- 
vice at  a  great  sacrifice,  and  therefore  anxious  to  be 
discharged.  The  reason  of  the  discharge,  and  of  Com- 
modore Bainbridge's  saying  their  services  could  be  dis- 
pensed with,  was  doubtless  this  : — on  the  22d  of  June, 
orders  were  issued  by  the  Governor  to  detach  a  regi- 
ment for  the  defence  of  this  post,  and  it  is  obvious  that 
the  occasion  for  their  services  was  superceded  in  this 
way.  This  regiment  was  detached  from  the  militia  of 
Boston,  and  entered  on  duty  for  a  month  with  four  18 
pound  battering  cannon  and  two  field  pieces.  That  the 
danger  had  not  diminished  is  obvious  from  the  fact  that 
the  Bulwark  74,  and  Nymph  and  Tenedos  frigates  were 
then  cruising  in  our  waters,  and  two  of  them  manoeu- 
vred in  sight  of  the  city  on  the  3d  of  July.  In  addition 


38 

to  this,  on  the  29th  of  June,  news  was  received  at  Bos- 
ton, that  an  expedition  was  preparing  at  Bermuda,  and 
to  sail  immediately  for  the  American  coast,  consisting 
of  four  74s,  six  frigates,  with  several  sloops  of  war  and 
transports,  with  troops.  Its  precise  destination  was 
unknown,  but  the  intelligence  came  direct,  and  the 
ships  were  named. 

This  force,  if  I  am  not  mistaken,  entered  the  Chesa- 
peake. 

On  the  12th  of  August,  Gen.  Dearborn  requested  the 
Adjutant  General  that  some  small  force  might  be  sta- 
tioned at  Duxbury  and  Cohasset  and  other  small  towns, 
as  the  inhabitants  had  made  application  to  him  for  that 
purpose.  He  desired  that  small  detachments  might  be 
turned  out,  without  formality  or  ceremony. 

This  is  the  substance  of  the  facts  in  relation  to  the 
troops  serving  upon  Boston  Bay  in  June,  July  and  Au- 
gust, and  without  entering  into  a  detailed  examination 
of  them,  I  will  merely  inquire  whether  it  would  not  have 
been  madness  to  omit  making  preparation  for  the  dan- 
gers which  seemed  to  beset  them.  When  so  strong  an 
armament  as  a  74  and  two  heavy  frigates,  filled  with 
men,  look  into  a  port,  and  manoeuvre  in  the  face  of  it, 
it  is  time  to  prepare  for  their  reception,  unless  you 
mean  to  be  taken  by  surprise.  That  experienced  officer 
Commodore  Bainbridge,  in  his  letter  of  the  5th  Sep- 
tember, writes  as  follows :  "  Allow  me,  my  dear  Gene- 
ral [Brooks],  to  say  that  if  the  Militia  is  not  embodied  in 
the  field,  I  should  much  fear  the  work  of  destruction 
would  be  over  before  they  could  rendezvous  or  oppose  ; 
for  four  or  six  hours  would  be  all  the  time  the  enemy 
would  require."  1  feel  confident  that  this  officer  would 
not  have  reposed  in  peace  in  the  month  of  July,  with 


39 

such  a  force  staring  him  in  the  face,  if  Col.  Osgood's 
regiment  had  not  been  in  service.  I  ought  also  to  add, 
that  this  regiment  was  ordered  out  upon  a  special  appli- 
cation of  the  Selectmen  and  inhabitants  of  Boston  and 
Charlestown.  With  these  observations  I  submit  to  your 
judgment  whether  this  force  which  was  before  Boston, 
as  well  as  that  upon  the  coast,  which  could  easily  be 
concentrated,  did  not  fully  justify  calling  out  a  regiment 
to  protect  so  important  a  place,  and  whether  the  same 
reasoning  does  not  apply  with  equal  force  to  the  neigh- 
boring towns. 

The  next  place  to  which  I  shall  call  your  attention  is 
Gloucester  (Cape  Ann),  page  96.  The  town  in  a  body, 
on  the  13th  of  June,  represent  that  the  enemy  landed 
at  the  wharves  and  burnt  the  shipping.  The  force  sta- 
tioned here,  in  consequence  of  the  very  strong  repre- 
sentations of  the  inhabitants  of  daily  attacks  upon  them, 
continued  to  occupy  the  port  until  a  detachment  of  mi- 
litia taken  into  the  service  of  the  United  States  on  the 
8th  of  July  took  their  place,  when  they  were  about  to 
be  discharged,  but  on  the  representation  of  the  inhabit- 
ants of  their  very  exposed  situation,  they  were  directed 
to  remain. 

It  appears  also  that  one  of  the  batteries  was  taken, 
and  the  cannon  spiked,  notwithstanding  all  the  force. 

The  Selectmen  also  certify,  page  101,  that  the  town 
was  constantly,  during  the  summer  and  fall  of  1814,  ex- 
posed to  the  depredations  of  the  enemy.  "  The  enemy 
was  constantly  attempting  to  land,  and  was  prevented 
from  this  and  other  outrages  by  the  Militia."  They 
represent  also  that  the  houses  were  fired  into.  The 
evidence  of  exposure  and  of  actual  injury  is  very  strong 
antecedent  to  the  4th  of  September  as  well  as  after  ; 


40 

and  I  will  leave  the  matter  for  your  judgment  without 
further  comment. 

I  fear  I  shall  protract  these  remarks  beyond  your  pa- 
tience, and  will  therefore  give  Portland,  and  the  district 
of  General  King,  but  a  passing  notice.  On  the  22d  of 
June,  the  Committee  of  Safety  for  Portland  implored 
the  assistance  of  the  government,  representing  that 
"  great  consternation  and  alarm  universally  prevailed 
among  the  inhabitants."  They  say,  "  the  inhabitants 
are  removing  their  goods  and  effects  out  of  town,  in 
consequence  of  our  want  of  preparations  for  defence  ;" 
"  a  full  meeting  of  the  town  was  held  on  Monday  last, 
and  the  committee  act  by  order  and  vote  of  the  town." 
They  add,  "  The  principal  part  of  the  United  States' 
force  have  marched  oft."  I  refer  you  also  to  the  letter 
of  the  Hon.  John  Anderson,  which  is  herewith  transmit- 
ted, who  was  then  a  resident  of  Portland,  and  confirms 
all  that  is  said,  remarking  that  there  was  not  a  work 
deserving  the  name  of  "fort"  on  the  whole  coast  of 
Maine.  Under  such  pressing  circumstances,  with  a 
very  great  amount  of  shipping  and  other  property  ex- 
posed, two  companies,  I  think,  were  furnished  for  their 
defence.  This  town,  it  will  be  remembered,  fell  a  vic- 
tim to  savage  ferocity  in  the  war  of  the  Revolution. 
You  cannot,  perhaps,  find  stronger  evidence  of  a  sin- 
cere conviction  of  danger  than  when  you  see  people 
fleeing  from  their  homes  to  escape  it,  and  turning  their 
town  into  a  fort  by  the  erection  of  batteries  for  volun- 
tary labor,  as  was  the  case  in  Portland.  After  a  portion 
of  the  troops  detached  and  placed  under  Gen.  Dearborn 
were  stationed  at  that  place,  say  in  the  fore  part  of  Au- 
gust, it  was  thought  advisable  still  to  retain  in  service 
other  militia,  and  you  find  strong  reasons  for  this  ex- 


41 

pressed  by  the  Committee  of  Safety,  and  also  by  Mr. 
Anderson.  The  latter  gentleman  says  there  were  then 
(August)  three  74s,  a  60  gun  ship,  with  a  due  propor- 
tion of  frigates  and  sloops  of  the  enemy,  constantly  on 
the  coast  and  threatening  attack. 

At  Bath,  Wiscasset,  &c.,  Gen.  King  has  given  a  full 
account  of  his  proceedings,  and  of  the  reasons,  (page 
68,  &c.)  He  says,  on  the  24th  of  June  after  describing 
the  active  and  threatening  operations  of  the  enemy,  he 
left  40  men  in  the  fort  at  the  mouth  of  Kennebeck  river, 
at  the  request  of  the  Lieutenant  of  the  fort.  In  his  let- 
ter of  the  23d.  he  says,  "  no  more  of  the  militia  have 
been  detained  in  service  than  is  necessary  to  guard  the 
various  points  and  narrow  passes  on  the  river.  When 
we  were  first  alarmed,  some  of  the  companies  were  or- 
dered into  the  forts,  which  were  almost  destitute  of  men, 
presuming  they  would  be  more  useful  there  than  in  any 
other  situation."  In  another  letter  of  the  24th  he  says, 
"  It  was  quite  an  object  with  me  to  lessen  the  expense 
as  much  as  possible."  It  appears  also  that  formal  and 
urgent  application  for  protection  was  made  by  the  in- 
habitants of  Bath.  Gen.  King  also  represents,  that  in 
order  to  determine  how  many  troops  were  necessary 
near  Wiscasset,  he  "  sent  for  Capt.  Perry,  commanding 
officer  of  the  fort,  and  requested  him  to  state  what 
number  of  men  he  considered  necessary  to  defend  his 
fort  in  case  of  attack."  His  answer  was,  "  One  hun- 
dred at  least."  To  the  question,  How  many  men  have 
you  in  the  fort?  he  answered,  "Eight."  I  need  not 
add  that  there  was  one  74  and  a  frigate,  with  smaller 
vessels,  in  these  waters  most  of  the  time  ;  that  there 
was  a  very  great  quantity  of  shipping,  and  that  every 
effort  was  made  to  destroy  it  as  well  as  to  carry  oft 
6 


42 

other  property.  The  attempts  to  land  were  constant, 
and  the  skirmishes  as  frequent.  The  barges  when  foil- 
ed in  one  direction,  took  another,  and  kept  the  whole 
district  in  constant  jeopardy. 

It  is  not  my  purpose  to  ask  your  attention  to  the  con- 
dition of  particular  towns,  any  further  ;  for  the  necessi- 
ties and  dangers  which  beset  those  I  have  enumerated, 
were  shared  in  common  by  all,  and  it  would  be  difficult 
to  make  any  discrimination.  I  have  gone  thus  far,  not 
for  the  purpose  of  shewing  greater  peril  at  the  places 
enumerated  than  at  others,  but  to  shew  the  nature  and 
character  of  the  war,  and  that  the  population  of  the 
coast,  as  well  as  their  property,  were  in  great  jeopardy. 
It  has  been  my  purpose  to  advance  nothing,  except 
what  is  borne  out  by  well-known  facts.  If  the  evidence 
be  not  plenary,  I  am  persuaded  1  can  make  it  satisfac- 
tory from  sources  on  which  you  would  place  the  most 
implicit  reliance.  The  general  state  and  condition  of 
the  coast — the  strong  force  of  the  enemy — the  vigorous 
blockade — the  marauding  character  of  the  war — the 
settled  determination  to  destroy  our  shipping — the  pe- 
culiar preparation  to  carry  on  such  warfare,  and  the 
defenceless  condition  of  the  coast,  are  all  facts  so  noto- 
rious that  no  one  can  be  ignorant  of  them  who  lived  in 
those  times.  They  speak  for  themselves  a  language 
which  cannot  be  mistaken,  and  prove  that  the  seaboard 
was  indebted  to  the  citizen  soldiers  for  its  safety.  The 
Militia  are  in  truth,  and  ever  have  been,  the  great  ram- 
part of  the  frontiers,  and  it  is  on  their  patriotic  devotion 
that  we  must  rely.  Important  positions  may  be  made 
strong  by  military  works,  but  our  wide-stretching  sea- 
board can  never  have  any  other  than  a  living  breast- 
work to  defend  it,  until  we  become  masters  of  our  own 


43 

waters.  It  is  the  armed  population  which  an  enemy 
who  approaches  this  country  fears  more  than  all  other 
strength  that  he  is  to  encounter.  Hence  it  is  of  vital 
importance  to  us  to  cherish  a  regard  for  the  Militia,  and 
to  reward  their  exertions  to  save  the  country  from  dis- 
honor. I  trust,  on  the  whole,  that  these  proofs,  though 
brought  together  in  a  desultory  manner,  will  fully  sus- 
tain me  in  my  belief,  that  no  force  was  out  under  the 
order  of  June  14,  1814,  and  other  orders,  which  the  ex- 
igency of  the  times  did  not  call  for,  and  which,  in  the 
application  of  the  rules  which  have  been  extended  to 
other  States,  will  not  be  allowed. 

I  have  written  in  much  haste,  for  I  did  not  think  of 
addressing  you  until  this  evening,  as  I  had  supposed, 
until  Friday  last,  that  we  should  probably  have  another 
conversation  ;  but  as  you  seem  much  pressed  with  busi- 
ness, and  as  you  expressed  a  hope  that  you  would  be 
able  to  bring  the  matter  to  a  close  in  a  day  or  two,  I 
thought,  as  it  was  possible  I  might  not  see  you  again,  I 
would  run  over  the  subject  on  paper.  As  I  have  HO 
time  to  take  a  copy  of  this,  you  will  greatly  oblige  me 
by  giving  me  an  opportunity  to  take  one  after  you  have 
perused  it. 

With  great  regard, 

I  am,  dear  sir, 

Your  obedient  servant, 

(Signed)      J.  DAVIS, 

Hon.  J.  H.  Eaton,  Secretary  of  War. 


44 


J.  H.  Eaton  to  J.  Davis. 


Department  of  War,  > 
Feb.  26,  1331.  ,  5 

SIR, — I  have  been  so  much  pressed  with  various 
kinds  of  business,  so  much  engaged  with  different  tribes 
of  Indians,  who  are  at  the  seat  of  government  upon 
matters  of  interest  to  them,  as  to  be  unable  until 
now  to  examine  and  consider  the  remarks  recently 
offered  by  you  on  the  subject  of  my  report  concerning 
the  Militia  Claims  of  your  State.  My  solicitude  finally 
to  decide  upon  their  merits  has  been  great  as  your 
own,  and  I  have  to  regret  the  delay  as  much  as  you 
do. 

It  is  true,  as  you  allege,  that  the  various  bays  and  in- 
dentations of  your  coast  presented  an  extensive  mari- 
time frontier,  open  constantly  to  the  attacks  of  the 
enemy,  and  which  was  necessary  to  be  defended.  But 
in  the  examination  which  I  made  of  the  case  (taking 
into  view  the  declaration  of  the  British  officer  after  the 
capture  of  Eastport,  and  the  assurances  of  the  Gover- 
nor as  to  the  capacity  of  the  militia  at  any  time  to  repel 
assaults,  without  any  previous  arrangement  of  them), 
my  opinion  was  formed  that  the  force  in  service,  exclu- 
sive of  the  calls  in  June,  1814,  was  amply  sufficient  for 
all  the  purposes  of  defence.  This  opinion,  however, 
was  reluctantly  arrived  at,  nor  was  I  entirely  satis- 


45 

lied  with  its  correctness.  Subsequent  information  ob- 
tained, and  a  more  close  examination,  satisfy  me  it  is 
not  correct,  and  hence  with  much  pleasure  it  is  re- 
versed. 

By  adverting  to  the  accounts  for  militia  service  in 
two  of  the  States  (Virginia  and  North  Carolina),  during 
the  months  of  June,  July  and  August  (and  which  have 
been  settled  and  paid  at  this  department),  it  appears 
that  in  the  latter  State,  during  this  period  of  our  history, 
about  900  militia  were  in  service,  at  an  expense  to  the 
government  of  more  than  $60,000.  In  Virginia,  the 
number  of  militia,  for  the  same  time,  amounted  to 
17,000,  and  were  paid  about  half  a  million  of  dollars  for 
their  services.  The  cause  of  this  difference  in  amount 
of  expenditure  within  those  States,  may  be  traced  to 
this  circumstance,  that  North  Carolina  possessed  a  sea- 
coast  so  difficult  of  access  as  to  afford  to  her  a  security 
which  did  not  attach  to  any  other  maritime  State.  But 
as  it  regards  Virginia  and  Massachusetts,  the  difference 
is  much  in  favor  of  the  latter.  A  greater  extent  of  sea- 
coast,  more  harbors  to  defend,  and  more  shipping  to 
protect,  should  necessarily  require  even  a  larger  number 
of  militia  than  were  employed  in  Virginia ;  but  they 
were  fewer.  This  reasoning  and  view  being  admitted, 
I  am  constrained  to  say,  that  if  the  prospect  of  invasion, 
during  the  summer  of  1814,  in  North  Carolina  and  Vir- 
ginia, was  such  as  to  authorize  payments  to  be  made  to 
them  for  militia  service,  in  discharge  of  the  trust  before 
me  I  cannot,  during  the  same  period,  declare  that  a 
different  rule  of  justice  and  settlement  should  be  made 
applicable  to  any  other  state.  The  adjusted  balance, 
therefore,  of  $144,876  81,  which  accrues  for  the  months 
of  June,  July  and  August,  the  payment  of  which  was 


46 

refused  in  my  report  heretofore  submitted  to  you,  is  di- 
rected to  "  be  credited  and  settled" 

Very  respectfully, 

J.  H.  EATON. 
John  Davis,  Esq.  > 

House  of  Representatives.  ) 


(E) 
J.  Davis  to  J.  H.  Eaton. 

Washington,  March  5th,  1831. 

SIR, — That  portion  of  the  Claim  of  Massachusetts 
which  the  examining  officers-  have  certified  to  be  fully 
vouched,  having  been  disposed  of,  I  have  now  to  ask 
your  attention  to  a  large  balance  which  was  paid  out  of 
the  treasury  of  the  State  for  military  service  during  the 
last  war,  and  which  was  either  suspended  or  disallowed 
by  said  officers,  for  the  reasons  set  forth  in  certain 
manuscript  documents  called  "  Rough  Notes." 

Many  of  the  items  were  suspended,  as  appears,  on  a 
rule  of  usage,  for  your  sanction ;  others  because  of  some 
deficiency  or  informality  in  the  evidence  ;  others  upon 
an  agreement  between  the  Executive  and  the  agent  of 
the  State,  &c.  &c.  But  these  payments  made  by  the 
State  were  for  expenses  incurred  in  the  same  service, 
by  the  same  troops,  and  upon  the  same  occasions,  as 
those  which  have  been  approved  by  the  Department, 
and  are,  therefore,  to  a  great  extent,  to  say  the  least,  a 
part  of  the  same  service  and  inseparable  from  it  unless 
by  a  violation  of  justice. 


47 

I  have  always  entertained  the  opinion  that  the  statute 
of  May  last  provided  for  the  liquidation  of  the  whole 
claim,  as  both  my  conversations  and  correspondence 
will  show ;  and  I  have  entertained  the  full  persuasion 
that  you  concurred  in  that  opinion,  from  the  tenor  of 
your  favor  of  the  first  of  November  last,  in  which  you 
say,  "  The  act  of  Congress  has  reference  to  a  final  and 
full  settlement  of  all  claims,  under  the  provisions  and 
principles  which  the  act  declares.  It  is  hence  necessa- 
ry that  all  the  claims  should  be  presented  before  any 
general  decision  shall  be  made."  You  intimated,  how- 
ever, yesterday,  in  our  conversation,  that  the  act  might 
call  for  a  more  limited  construction  by  confining  the  al- 
lowance to  the  State,  and  indeed  the  settlement  of  the 
whole  claim,  to  the  amount  of  money  appropriated. 
The  practical  effect  of  such  a  limitation  would  be  to 
pay  the  troops  of  Massachusetts  less  for  the  same  ser- 
vice than  is  allowed  to  the  troops  of  other  States ;  and 
I  am  not  willing  to  believe  that  Congress  could  design 
to  make  such  an  invidious  distinction.  The  great  re- 
spect I  entertain,  however,  for  even  the  suggestions  of 
the  Department,  has  induced  me  to  look  at  the  act  with 
care,  and  to  consider  its  provisions  with  attention  ;  and 
I  feel  constrained  to  declare  frankly  that  my  convictions 
remain  unaltered. 

It  seems  to  me  that  the  very  terms  of  its  provisions, 
which  are  almost  in  the  words  of  the  rules  of  the  De- 
partment, which  have  been  adopted  from  time  to  time 
in  settling  the  claims  of  other  States,  imply  most  strong- 
ly that  no  discrimination  unfavorable  to  the  claimants  is 
to  be  made.  This  view  of  the  matter  is  greatly  strength- 
ened by  the  facts,  that  the  claim  was  not  referred  to 
Congress  to  settle  the  amount  due,  for  that  was  not  the 


48 

matter  in  controversy  between  the  governments,  but  a 
question  of  entirely  different  character.  The  charges 
and  payments  of  Massachusetts  were  like  those  of  other 
States,  and  could  have  been  as  easily  adjusted,  had  not 
a  question  of  power  arose..  The  reference  was  made 
to  settle  this  question,  because  the  Executive  alleged  it 
was  not  in  the  scope  of  his  authority.  If  the  settlement 
stops  here,  the  State  will  be  left  in  a  most  embarrassing 
situation.  She  will  still  have  a  claim  for  the  balance  of 
the  same  service  which  the  act  provides  for,  and  which 
has  been  in  part  settled,  a  portion  of  which  balance  is 
clearly  due  within  the  very  terms  of  the  act ;  for  it  is 
for  service  to  repel  actual  invasion,  or  rendered  upon 
well  founded  apprehension  of  invasion,  and  yet  it  is  so 
mixed  with  other  matters  that  its  amount  cannot  be 
known  until  it  is  separated. 

I  have  never  supposed  the  appropriation  was  design- 
ed for  any  other  purpose  than  to  pay  at  once  what  had 
been  ascertained  to  be  due.  If  it  is  to  go  beyond  this, 
and  give  the  construction  intimated  to  the  act,  the  other 
provisions  of  the  act  cannot  be  executed  ;  for  express 
provision  is  made  for  the  settlement  and  allowance  of 
all  the  services  in  the  three  cases  mentioned  in  it.  If 
the  sum  is  insufficient  for  this,  and  the  settlement  can- 
not go  beyond  it,  then  a  part  of  these  services  must  re- 
main unsettled. 

I  will  forbear  entering  more  at  large  into  this  question 
at  present,  for  I  will  not  hazard  the  attempt  to  antici- 
pate the  views  which  led  to  the  suggestion  made  by  you 
yesterday.  You  gave  me  to  understand  that  your  mind 
was  open  to  reasoning  upon  this  subject,  and  from  the 
candor  which  has  characterized  your  former  decisions, 
I  feel  assured  that  this  question  will  meet  with  a  careful 
and  dispassionate  consideration. 


49 

If  objections  to  the  course  I  propose  still  exist  in  your 
mind,  and  I  can  be  apprised  of  them,  it  will  give  me 
great  pleasure  to  make  an  effort  to  remove  them.  I 
hope  to  hear  from  you  soon. 

I  am,  dear  sir,  with  great  regard, 

Your  obedient  servant, 

J.  DAVIS. 
Hon.  J.  H.  Eaton. 


/.  H.  Eaton  to  J.  Davis. 

Department  of  War, 
March?,  1831. 

SIR,  —  1  have  received  your  letter  of  the  5th  of  March, 
urging  a  further  examination  of  the  demands  of  Massa- 
chusetts upon  this  government. 

These  claims  have  been  a  long  time  deferred.  Near- 
ly seventeen  years  have  passed  by  since  they  originated. 
Repeatedly  they  have  been  the  subject  of  examination 
by  Congress,  and  until  May  1830,  nothing  definite  or 
certain  took  place  in  reference  to  them.  Then  the  act 
passed  which  authorized  and  directed  me  to  superintend. 
their  adjustment. 

The  provisions  of  the  act  of  May  1  830  confines  the 

settlement  of  the  claim  to  payments  to  be  made  on  ac- 

count of  "  the  services  of  Militia  during  the  late  war." 

No  other  authority  than  this  was  conceded  by  the  act. 

7 


50 

The  ground  of  argument  to  be  assumed  is,  that  the 
items  of  miscellaneous  charges,  heretofore,  in  1828, 
deemed  and  declared  to  be  inadmissible  at  the  Treasu- 
ry Department,  may  now  be  considered  in  a  different 
point  of  view.  That  the  service  being  admitted,  those 
items  of  charge  which  are  for  clothing,  rations,  arms, 
munitions,  &c.  &c.,  should  rest  upon  the  ground  of  sim- 
ilar applications  from,  and  allowances  to  other  States, 
subject  only  to  the  approval  of  the  Secretary  of  War. 
It  is  not  in  my  power  to  adopt  this  reasoning.  The 
claim  of  Massachusetts  has  been  uniformly  resisted,  and 
its  allowance  refused,  because  the  Executive  of  the 
State  had  declined  to  place  these  troops  at  the  disposal 
of,  and  subject  to,  the  control  of  the  General  Govern- 
ment. Of  course,  while  the  refusal  rested  against  the 
legality  and  character  of  the  service,  it  was  not  practi- 
cable to  admit  claims  and  items  of  claims,  which  were 
mere  consequences  of  that  service. 

How  can  I  consider  of  this  matter  differently  now  ? 
But  for  the  act  of  May,  1830,  the  claim  under  objections 
previously  urged  and  maintained,  could  not  be  paid. 
The  provisions  of  that  act  removed  these  objections, 
and  tbe  department  was  directed  to  "  settle  and  credit 
the  claims  of  Massachusetts"  in  cases  where  the  Militia 
had  been  called  into  service  "  to  repel  actual  invasion, 
or,  under  a  well-founded  apprehension  of  invasion." 
Here  the  direction  ceased.  I  am  not  at  liberty  to  say, 
that  Congress  having  relieved  against  the  objection  here- 
tofore insisted  upon  in  reference  to  personal  services, 
that,  therefore,  it  is  to  be  understood,  that  the  broad 
and  entire  merits  of  the  demand  of  your  State,  in  all 
their  various  bearings  are  alike  to  be  considered  as  re- 
moved, more  especially,  can  I  not  argue  thus,  inasmuch 


51 

as  the  appropriation  made  by  the  act  of  May,  1830,  is  a 
limited  one.  It  will  be  plainly  perceived  by  you,  that  the 
authority  given  me  by  that  act  is  in  reference  alone  to 
personal  service,  which  the  troops  of  your  State  had 
performed  during  the  war,  and  whether  a  farther  adjust- 
ment, as  to  other  matters  of  expenditure  shall  be  con- 
sidered, seems  to  me,  to  rest  entirely  in  the  discretion 
of  Congress. 

Very  respectfully, 

J.  H.  EATON, 
John  Davis,  Esq.  of  Massachusetts. 


(G) 
/.  Davis  to  J.  H.  Eaton. 

Washington,  March  8th,  1831. 

SIR, — In  reply  to  your  note  of  yesterday,  in  which 
you  decline  all  further  examination  of  the  claim  of 
Massachusetts,  on  the  ground  that  you  have  no  author- 
ity to  proceed  further,  I  beg  leave  to  lay  before  you  the 
facts,  which  in  my  judgment  have  a  bearing  upon  the 
question  between  us,  that  they  may  stand  in  their  appro- 
priate connection,  as  the  final  decision  of  that  question 
may  affect  deeply  the  rights  and  interests  of  the  States 
concerned  in  this  claim.  1  desire  to  be  allowed  to  pur- 
sue this  course,  for  the  objection  now  taken  is  new  and 
wholly  unanticipated  by  me,  and  will,  I  have  no  doubt, 
excite  the  surprise  of  the  people  of  Massachusetts  and 


52 

Maine,  should  it  be  adhered  to,  for  they  are  waiting 
with  confidence  for  a  different  result.  It  is  necessary 
therefore  that  I  should  recur  to  the  history  of  events, 
that  the  whole  matter  may  be  understood.  This  will 
tend  strongly  to  elucidate  the  subject,  and  will,  I  trust, 
remove  the  objections  which  have  been  made  against 
further  investigation. 

On  the  31st  day  of  May  last,  the  act    r  Congress  pro- 
viding for  the  settlement  of  the  claim  was  approved  by 
the  President.    On  the  9th  of  June,  following,  Governor 
Lincoln  addressed  to  you  a  note,  in  which  he  distinctly 
avows  his  views  of  the  provisions  of  the  act,  by  asking 
for  payment  of  the  sum  certified  by  the  Auditor,  and  a 
speedy  examination  and  adjustment  of  the  balance.    On 
the  29th  of  the  same  month  he  again  addressed  you, 
reiterating  the  same  request.     The  first  of  these  letters 
was  answered  by  Mr.  Randolph,  who  stated  that  you  was 
absent,  and  that  he  had  no  authority  to  act  in  your  be- 
half.  You  replied  to  the  second  from  Tennessee,  under 
date  of  the  18th  of  August,  and  among  other  things  ob- 
served "  I  have  written  to  the  Third  Auditor  to  have  the 
account  prepared  and  in  readiness  under  the  general 
heads  directed  by  Congress,  that  on  my  arrival  it  may 
be  acted  on."     On  the  9th  of  July,   having  received 
official  notice  of  my  appointment  as  agent  of  the  Com- 
monwealth for  the  settlement  of  the  claim,  I  addressed 
a  letter  to  you,  in  which  I  requested  that  the  portion  of 
the  claim  which  had  been  suspended  or  disallowed  might 
be  brought  under  examination  for  allowance.     On  the 
first  day  of  November  following,  I  had  an  interview  with 
you  in  this  City,  and  in  pursuance  of  a  suggestion  made 
by  you  in  the  conversation,  I  addressed  another  note  to 
you,  in  which  after  stating  the  condition  of  the  claim, 


53 

somewhat  in  detail,  I  expressed  a  wish  that  the  portion 
allowed  by  the  officers  of  the  Treasury  might  be  paid, 
and  your  attention  be  directed  to  the  residue.  In  a  note 
of  yours  addressed  to  me,  and  bearing  date  on  the  same 
day,  you  observe,  "  the  act  of  Congress  has  reference 
to  a  final  and  full  settlement  of  all  the  claims  under  the 
provisions  and  principles  which  the  act  declares,"  and 
you  add,  "  it  is  hence  necessary  that  all  the  claims 
should  be  presented  before  any  general  decision  shall 
be  made." 

I  must  be  permitted  to  declare  that  from  this  corres- 
pondence, and  this  interchange  of  views,  I  embraced  the 
belief  that  no  difference  of  opinion  existed  as  to  the  con- 
struction of  the  act,  and  in  truth,  I  never  looked  for  any 
on  this  head,  for  it  never  occurred  to  me  that  the  lan- 
guage was  capable  of  the  limited  sense  now  given  to 
it,  until  the  idea  was  thrown  out  at  the  Department 
a  few  days  since.  I  supposed  the  direction  to  the 
Auditor,  "  to  have  the  account  prepared  and  in  readiness 
under  the  general  heads  directed  by  Congress,"  em- 
braced the  whole  account.  I  entertained  the  belief  also, 
when  it  was  made  a  preliminary  requisite,  "  that  all  the 
claims  should  be  presented  before  any  general  decision," 
because  "  the  act  of  Congress  had  reference  to  a  final 
and  full  settlement,"  that  the  whole  account  was  to  be 
adjusted  and  settled  by  virtue  of  the  provisions  of  the 
act.  Having  now  reiterated  the  sentiments  which  have 
guided  my  mind  thus  far  in  the  transactions  relating  to 
this  settlement,  and  having  also  made  known  the  feelings, 
views  and  expectations  of  those  I  represent,  I  beg  leave 
in  the  most  respectful  manner,  to  submit  to  your  consid- 
eration my  opinions  more  in  detail  as  to  the  true  inter- 
pretation of  the  act. 


You  maintain,  if  I  rightly  understand  the  tenor  of  your 
letter  of  the  seventh  inst.  that  it  covers  only  the  personal 
service  of  the  Militia,  while  I  entertain  the  belief  that  it 
was  designed  to  give  to  the  State,  the  same  measure  of 
relief  which  has  been  extended  to  other  States,  in  all 
the  cases  of  service  which  it  embraces.  To  arrive  at 
the  true  meaning  of  the  act,  two  things  are  to  be  con- 
sidered ;  first,  the  subject  matter  which  was  the  cause  of 
the  enactment ;  and  second,  the  phraseology  employed 
by  the  Legislature  to  express  its  intentions.  First,  why 
was  the  act  passed  ?  In  answer  to  this  inquiry  I  will 
take  the  liberty  to  repeat  in  substance  what  I  have  said 
in  a  former  communication.  Neither  the  amount  of 
claim,  nor  the  matters  of  charge  were  the  alleged  causes 
of  its  reference  to  Congress.  In  these  respects  it  was 
in  no  wise  dissimilar  to  the  claims  of  other  States,  and 
therefore  legislative  advice  and  instruction  was  neither 
needed  or  sought  for  on  this  head.  The  President  in 
his  message  of  the  24th  of  February  1824,  has  assigned 
two  reasons  for  this  reference.  First,  because  the  Ex- 
ecutive of  Massachusetts,  assumed  to  judge  for  himself, 
when  a  constitutional  emergency  existed  for  calling  the 
Militia  into  the  public  service,  and  secondly,  because 
lie  considered  the  Governor  as  having  maintained  the 
doctrine,  that  the  militia  in  actual  service  were  not 
subject  to  be  commanded  by  any  officer  ot  the  United 
States  except  the  President. 

He  founded  his  objections  to  what  he  conceived  to  be 
the  opinions  of  the  Governor  on  the  constitution,  and 
committed  the  matter  to  Congress,  because  he  viewed 
it  as  involving  nn  important  principle,  which  the  execu- 
tive could  not  settle  ;  but  at  the  same  time  he  strongly 
urged  that  body  to  wave  the  objection,  and  place  the 


55 

claim  on  the  same  footing  as  those  of  other  States.  Now 
I  do  not  desire  to  draw  these  questions,  raised  by  the  two 
executives,  into  consideration  ;  for  you  expressed  an 
opinion  (in  which  I  fully  concur)  in  your  communica- 
tion of  the  20th  of  January,  that  you  are  not  called  upon 
"  to  consider  the  claim  in  reference  to  the  objections 
which  were  originally  made"  against  it.  My  only  mo- 
tive for  adverting  to  this  message  is  to  show  the  reasons 
alleged  for  sending  it  to  Congress,  and  I  wish  to  be  dis- 
tinctly understood  as  not  admitting  the  causes  of  differ- 
ence to  exist  to  the  extent  the  President  seemed  to 
suppose.  If  it  were  necessary  or  proper,  I  could  at  once 
point  you  to  the  most  plenary  proof,  that  in  many  in- 
stances the  militia  of  Massachusetts  did  serve  under 
officers  of  the  United  States,  and  that  the  Governor 
gave  directions  to  some  of  the  commanders  of  Divisions 
on  the  seacoast  to  furnish  as  many  men  as  were  desired, 
to  officers  commanding  the  forts  of  the  United  States. 
A  difference  of  opinion  existed  in  1812,  as  to  the  right 
of  calling  out  troops,  but  that  question  was  not,  and 
could  not  have  been  raised  in  1814,  for  there  was  an 
entire  concurrence  of  sentiment,  as  to  the  necessity  of 
making  defence  against  the  enemy.  The  reasons  for 
not  mustering  the  troops  into  the  service  of  the  United 
States  at  that  time,  were  of  a  different  character,  and 
founded  on  objections  to  the  mode  of  organizing  them. 
But  I  will  not  dwell  on  this  collateral  matter.  The 
President  alleges  that  the  claim  was  referred  to  Con- 
gress, because  of  a  disagreement  of  opinion  upon  Con- 
stitutional law.  The  very  document  in  which  this  reason 
is  assigned,  contains  a  declaration  that  the  services  were 
patriotic  and  necessary,  and  that  the  claim  ought  to  be 
settled  in  the  same  manner  as  the  claims  of  other  States. 


56 

It  is  clear,  therefore,  that  I  am  right  when  1  say  that 
neither  the  amount  claimed,  nor  the  matters  of  charge 
were  the  cause  of  this  reference  to  the  Legislature.  A 
discrimination  between  personal  arid  other  services  had 
not  been  thought  of. 

This  brings  me  to  consider,  secondly,  what  is  the  true 
meaning  of  the  act  ?  Does  it  provide  for  zfull  and  final 
settlement  of  the  claim,  or  does  it  only  provide  for  a 
settlement  in  part  ?  The  act  is  in  the  following  words : — 

"  SECT.  1.  Be  it  enacted,  &c.  That  the  proper  ac- 
"  counting  officers  of  the  Treasury  under  the  superin- 
"  tendence  of  the  Secretary  of  War,  be,  and  they  here- 
"  by  are  authorised  and  directed  to  credit  and  settle  the 
"  claims  of  the  State  of  Massachusetts,  against  the  Uni- 
"  ted  States,  for  the  services  of  her  militia  during  the  late 
"  war,  in  the  following  cases. 

"  First,  where  the  militia  of  said  State  were  called  out 
"  to  repel  actual  invasion  or  under  a  well  founded  ap- 
u  prehension  of  invasion — Provided,  their  numbers  were 
"  not  in  undue  proportion  to  the  exigency. 

"  Second,  where  they  were  called  out  by  the  author- 
"  ity  of  the  State,  and  afterwards  recognized  by  the 
"  Federal  Government,  and 

"  Thirdly,  where  they  were  called  out  by,  and  served 
"  under  the  requisition  of  the  President  of  the  United 
"  States,  or  any  officer  thereof. 

"  SECT.  2.  Be  it  enacted,  &c.  That  the  sum  of  four 
"  hundred  and  thirty  thousand  seven  hundred  and  forty 
"  eight  dollars  and  twenty  six  cents,  if  so  much  be 
"  necessary,  be  applied  to  the  foregoing  purposes  out 
"  of  any  money  in  the  Treasury  not  otherwise  appro- 
"  priated." 
The  question  before  Congress  was  not  whether  a  great- 


57 

er  or  less  sum  should  be  allowed,  nor  whether,  in  any 
particular  service,  this  thing  or  that  should  be  paid  for, 
but  whether  they  would  relieve  the  State  from  the  Con- 
stitutional objection  raised  by  the  Executive  of  the  Uni- 
ted States,  and  they  passed  the  above  act  for  that  pur- 
pose, directing  that  the  services  of  the  militia  should  be 
settled  in  the  several  cases  therein  specified. 

That  I  am  correct  in  this  view  of  the  subject  is  proved 
by  the  whole  history  of  the  claim  ;  but  if  the  proof  were 
less  complete  from  this  source,  still  I  should  be  sustained 
by  the  authority  of  the  Department. 

In  your  communication  of  the  20th  of  January  last, 
you  remark,  "  the  essential  difficulty,  and  which  has  in- 
volved much,  and  close  examination,  is  in  reference  to 
the  class  of  cases  under  the  first  general  head  (of  the 
act)  prescribed.  These  are  most  numerous  and  would 
present  increased  embarrassment,  but  for  the  opinion 
possessed  that  in  enacting  the  law  of  May  1830,  Con- 
gress intended  that  the  objections  heretofore  arising  and 
which  are  presented  in  the  correspondence  of  the  Secre- 
tary of  War  and  Governor  of  Massachusetts,  during  the 
late  war  were  to  be  discarded."  And  after  reciting 
parts  of  the  correspondence  between  the  Governor  and 
the  Secretary  of  War,  in  which  the  latter  announces  the 
opinion  of  the  President,  that  he  had  no'power  to  allow 
pay  to  the  troops  of  Massachusetts  for  their  services, 
but  it  would  be  a  matter  for  the  Legislature  to  settle, 
you  observe,  "  this  ground  of  difference,  the  act  of  Con- 
gress removes."  Again  you  add,  "  in  discharging  the 
trust  given  to  me  under  this  act,  I  have  not  felt  myself 
called  upon  to  consider  the  claim  in  reference  to  the 
objections  which  were  originally  made,  but  simply  to 
determine  under  the  provisions  of  the  act,  if  at  the  time 
8 


58" 

those  claims  arose,  and  when  the  militia  were  called  out 
there  was  an  actual  invasion  or  well  founded  apprehen- 
sion of  invasion,"  and  also  whether  "  the  numbers  were 
in  undue  proportion  to  the  exigency.  To  determine 
these  is  all  I  feel  myself  called  upon  or  required  to  do." 
Thus  far  it  seems  to  me  that  every  circumstance  which 
has  transpired  in  this  affair  tends  to  lead  the  mind  direct- 
ly to  the  conclusion,  that  the  act  was  passed  for  the  sole 
purpose  of  removing  the  Constitutional  objection,  and 
of  placing  the  claim  of  Massachusetts,  for  all  expenses 
incurred  by  ordering  troops  into  the  service  under  the 
circumstances  therein  prescribed,  on  the  same  footing 
as  the  claims  of  other  States.  If  other  proof  were  need- 
ed to  establish  this  position,  I  would  invite  your  attention 
to  the  fact,  that  the  act  itself  is  obviously  framed  with 
reference  to  the  rules  of  the  Department  adopted  as  far 
back  as  1818,  in  settling  the  accounts  of  other  States. 
The  three  classes  of  cases  enumerated  in  the  act,  I 
think  will  be  found  identical  with  these  pre-existing 
rules,  which  circumstance  is  a  pretty  decisive  proof  that 
Congress  meant  to  give  to  Massachusetts  the  same 
measure  of  justice,  that  has  been  meted  out  to  others. 

It  is  also  worthy  of  remark,  that  in  all  the  reasonings 
and  movements  relative  to  this  claim,  in  and  out  of  Con- 
gress, up  to  this  time,  no  intention  has,  to  my  knowledge, 
ever  manifested  itself  to  adopt  a  new  principle  in  settling 
the  expenditures  occasioned  by  any  body  of  troops  whose 
service  might  be  allowed  to  the  State  of  Massachusetts. 

But  in  your  communication  of  the  7th  of  this  month, 
you  appear  to  maintain  that  Congress  by  their  act 
have  removed  the  Constitutional  objection  from  the 
personal  services  only  of  the  troops.  That  no  misap- 
prehension may  exist,  I  will  here  state  what  1  understand 


59 

by  personal  service.  I  understand  that  in  your  opinion 
the  monthly  pay  or  wages  only  of  the  troops  is  provided 
for,  and  consequently  all  other  expenditures,  as  for  ra- 
tions, ammunition,  fuel,  forage,  hospital  charges,  trans- 
portation, &c.  &c.  are  excluded.  I  must  beg  leave  in 
the  most  respectful  manner  to  dissent  from  this  opinion, 
and  with  your  permission  will  state  the  reasons  which 
has  brought  my  mind  to  a  different  conclusion.  This 
construction  is  at  variance  with  the  object  of  the  Execu- 
tive in  referring  the  claim  to  Congress,  and  with  the 
probable  intent  of  that  body  in  passing  the  act,  unless 
some  good  reason  can  be  assigned  for  this  singular  dis- 
crimination which  admits  the  right  of  the  State  to  re- 
ceive the  monthly  pay  of  the  troops,  and  denies  the  right 
to  reimbursement  for  all  other  expenditures,  however 
necessary.  But  what  could  have  been  the  motive  for 
such  a  discrimination  ?  On  what  reasonable  basis  can 
it  rest  ?  Why  should  the  monthly  pay  of  troops  be  allow- 
ed to  the  State,  and  the  charges  for  their  rations,  fuel, 
hospital  expenses,  &c.  without  which  they  could  not 
subsist  or  be  useful,  be  disallowed  ?  no  such  rule  has 
ever  been  adopted  in  the  settlement  of  military  accounts, 
and  can  it  be  that  Congress  by  a  deliberate  act  of  legis- 
lation, meant  to  impose  conditions  so  offensive  and  un- 
just upon  the  people  of  these  two  States  ?  I  may  safely 
answer  no ;  for  I  most  solemnly  aver  my  full  belief  that 
the  thought  of  such  a  discrimination  never  passed  over 
the  mind  of  a  member  of  that  body.  Pay  without  sub- 
sistence would  be  an  anomaly  in  military  affairs.  It 
would  greatly  surprise  the  States  of  this  Union,  if  told 
that  their  militia  would  be  allowed  monthly  pay  or  wages, 
but  nothing  for  food,  or  shelter,  or  fuel,  or  medicine,  or 
nursing.  This  discrimination  is  invidious  and  unjust ; 


60 

for  it  excludes  charges  for  public  service,  such  as  have 
been  allowed  to  other  States  by  the  unanimous  consent  of 
the  nation,  and  against  which  we  have  never  heard  any 
objection,  except  those  which  have  been  urged  against 
the  whole  claim.  I  am  sensible  that  we  must  take  the 
act  as  we  find  it ;  but  if  it  is  to  receive  this  construc- 
tion, I  am  confident  Congress  have  not  only  failed  to 
express  their  meaning,  but  their  language  will  be  made 
to  utterly  pervert  their  intention.  It  would  seem  to  me, 
therefore,  that  an  interpretation  so  opposed  by  reason, 
and  so  against  the  obvious  sense  of  the  Legislature, 
ought  not  to  be  adopted. 

But  it  appears  to  me  these  views  are  confirmed  by 
looking  into  the  act,  for  I  can  find  nothing  there  which 
calls  for  this  limited  construction.  It  provides  for  the 
services  of  the  Militia  of  the  State  during  the  late  war 
in  the  cases  enumerated.  What  is  Militia?  Not  men 
alone,  for  every  man  is  not  of  the  Militia.  The  term  has 
a  broader  signification  ;  it  implies  not  only  men,  but  men 
furnished  with  the  equipage  and  munitions  of  war  ;  and 
when  we  speak  of  paying  the  Militia,  we  mean  some- 
thing more  than  the  monthly  wages  of  men, — we  mean 
to  include  the  expenses  of  a  body  of  men  in  the  public 
service,  provided  with  whatever  is  necessary  to  consti- 
tute a  Militia  or  armed  force. 

The  act  provides  for  the  payment  of  the  claims  of  the 
State  for  the  services  of  her  Militia.  What  is  military 
service  ?  In  common  parlance  and  in  legislation,  it  is 
a  phrase  well  understood,  and  in  such  common  and 
necessary  use  that  we  should  find  it  difficult  to  make 
ourselves  intelligible  without  it. 

Appropriations  have  been  made  for  many  years  for 
"  the  Military  Service,"  so  denominated  in  the  acts. 


61 

These  acts  contain  the  annual  allowances  to  all  the  de- 
partments of  the  army,  to  the  Indian  bureau,  to  pen- 
sioners of  all  classes,  for  fortifications,  arsenals,  &c.  &c., 
and  it  is  all  called  Military  Service.  We  speak  also  of 
the  Naval  service,  and  the  public  service,  and  mean  to 
use  the  phrases  in  a  very  comprehensive  sense,  reaching 
much  beyond  the  mere  employment  or  mere  pay  of 
men.  The  object  provided  for  by  the  act  is  the  Militia. 
The  Militia  is  an  armed  force  with  its  equipment,  and 
expenditures  incurred  for  such  a  body  are  expenditures 
upon  objects  properly  denominated  Military  or  Mili- 
tia Service,  within  the  ordinary  acceptation  and  mean- 
ing of  the  phrase.  If  we  take  into  consideration  the 
design  of  passing  the  act,  it  seems  to  me  we  can  arrive 
at  no  other  conclusion  ;  for  it  cannot  be  presumed  that 
Congress,  without  any  assignable  motive,  would  make 
an  unjust  and  offensive  discrimination  between  the 
troops  of  Massachusetts  and  the  troops  of  other  States, 
nor  can  it  be  presumed  they  meant  to  provide  for  the 
allowance  of  monthly  wages,  and  to  exclude  rations, 
fuel,  forage,  hospital  charges,  and  other  expenses  which 
must  be  incurred,  and  which  have  been  uniformly  al- 
lowed. The  term  services  was  not  intended  to  be  used 
in  that  narrow  sense,  but  to  include  the  disbursements 
occasioned  by  calling  out  the  Militia ;  to  be  adjusted 
according  to  the  established  rules  in  settling  such  ac- 
counts. 

It  is  obvious,  also,  that  the.  appropriation  itself  fur- 
nishes a  strong  argument  in  support  of  this  reasoning. 
The  sum  appropriated  is  the  exact  balance  reported  by 
the  accounting  officer  to  be  due.  This  balance  is  made 
up  of  the  usual  elements  of  military  service,  consisting 
of  monthly  pay,  wages,  rations,  fuel,  transportation,  for- 
age, hospital  charges,  &c.  &c. 


62 

If  Congress  intended  to  provide  for  the  payment  of 
monthly  wages  only,  it  is  singular  that  this  balance  pre- 
cisely, composed  as  it  is  of  almost  every  expense  be- 
longing to  the  service,  should  be  appropriated  for  that 
purpose. 

In  looking  at  the  report  of  the  Auditor,  we  cannot 
fail  to  notice  the  fact,  that  the  claim  was  never  exam- 
ined or  dissected  with  reference  to  personal  service. 
This  part  of  it  was  never  brought  under  separate  con- 
sideration, nor  was  it  ever  thought  by  any  one  to  be 
privileged  above  other  portions. 

The  act  itself  is  far  from  favoring  such  an  idea,  for 
its  main  provisions,  as  1  have  already  observed,  are 
substantially  a  transcript  of  the  rules  of  the  Department, 
which  have  never  been  applied  in  this  manner.  It  is 
singular,  if  Congress  intended  to  provide  for  this  portion 
of  the  claim  only,  that  they  should  pass  an  act  from 
which  that  intention  can  be  gathered  only  by  giving  an 
unusual  and  unprecedented  meaning  to  the  word  ser- 
vices. 

I  would  remark,  also,  that  the  balance  found  by  the 
Auditor  to  be  due,  as  I  have  stated,  has  been  allowed 
and  paid  over  to  the  claimants.  It  covered  part  of 
many  charges  which  are  admitted  to  be  unobjectiona- 
ble, but  have  been  suspended  because  the  evidence  filed 
in  their  support  was  adjudged  to  be  informal  or  insuffi- 
cient. These  objections,  I  have  no  doubt,  can  at  once 
be  removed,  and  then  these  items  will  stand  on  the 
same  footing  as  those  which  have  been  recognised  as 
allowable.  I  ought  also  to  add,  that  a  large  sum  for 
monthly  pay,  forage,  fuel,  &c.  is  suspended  in  this  man- 
ner ;  and  I  have  noticed  some  charges  as  marked  sus- 
pended, merely  to  ascertain  the  distances  travelled  by 
troops.  It  follows,  therefore,  if  the  investigation  stops 


63 

here,  a  portion  of  the  personal  services  will  remain  un- 
settled. 

The  insufficiency  of  the  appropriation  cannot  form 
any  solid  objection  to  settling  the  claim  ;  for  Congress 
cannot  well  provide  for  it  until  the  amount  is  known. 
As  I  view  the  matter,  the  act  removes  the  constitutional 
objection  from  all  disbursements  and  expenditures  on 
account  of  troops  called  into  the  service  under  the  cir- 
cumstances specified  in  it,  and  the  appropriation  was 
limited  to  the  sum  mentioned,  because  that  sum  had 
then  been  found  to  be  satisfactorily  vouched. 

I  will,  with  a  few  additional  remarks,  take  my  leave 
of  the  subject  for  the  present.  This  is  a  question  of 
much  interest  to  the  people  of  Massachusetts  and 
Maine.  They  have  been  patient  petitioners  to  the  gov- 
ernment for  many  years,  suing  for  the  same  measure  of 
justice  which  had  been  promptly  extended  to  other 
States.  That  they  turned  out  with  alacrity,  and  per- 
formed great  and  patriotic  services  in  defence  of  the 
country,  has  always  been  conceded.  That  they  ad- 
vanced from  their  own  pockets  the  funds  to  meet  the 
expenditures  occasioned  by  these  services  is  admitted. 
When  the  act  of  last  Congress  passed,  they  congratula- 
ted themselves  upon  the  prospect  of  a  speedy,  fair  and 
honorable  adjustment ;  and  I  cannot  doubt,  if  the  set- 
tlement is  arrested  here,  intelligence  of  such  a  step  will 
be  received  with  bitter  disappointment. 

I  have  now  communicated  my  views  with  freedom 
and  frankness,  but  I  trust  in  a  respectful  manner,  and  I 
assure  you  with  entire  sincerity  that  I  feel  myself  justi- 
fied in  placing  the  greatest  reliance  on  your  candor  in 
deciding  this  important  question. 

With  great  respect,  your  obedient  servant, 

J.  DAVIS. 


(H) 

J.  H.  Eaton  to  J.  Dams. 

Department  of  War,  > 
March  15th,  1831.  > 

SIR, — Your  letter  of  the  8th  was  not  received  by  me 
until  yesterday.  I  assure  you  it  would  afford  me  pleas- 
ure to  be  able  to  adopt  your  reasoning  and  to  proceed 
with  an  examination  of  the  claims  of  your  State,  which 
have  so  long  been  deferred  ;  but  candor  prompts  me  to 
say  that  after  a  patient  examination  of  all  you  have  sug- 
gested, my  mind  is  not  brought  to  any  conclusion  differ- 
ent from  what  was  communicated  to  you  in  my  last 
letter. 

Why  have  the  claims  of  the  State  of  Massachusetts 
been  so  long  postponed  ?  Why  is  it,  while  other  States 
of  this  Union,  for  services  of  their  militia  during  the 
war,  have  long  since  been  heard  and  their  demands  ad- 
justed, that  for  16  years  those  of  the  State  of  Massa- 
chusetts have  lain  over,  unacted  upon  ?  The  answer  is 
to  be  found  in  the  objections  which  constantly  have 
been  urged,  that  the  troops  of  the  State,  because  not 
placed  under  the  control  of  the  General  Government, 
nor  made  subject  to  its  command,  were  not  liable  to  re- 
ceive compensation  from  that  quarter.  In  1814,  the 
Secretary  of  War  distinctly  assumes  this  ground,  and  in 
his  letter  to  the  Governor  of  Massachusetts  remarks, 
that  for  this  reason,  the  militia  of  the  State  must  look 


65 

only  to  the  State,  and  not  to  the  General  Government, 
for  compensation  for  their  services. 

* 

Jon  this  ground  the  objection  rested,  was  met,  and 
argued  on  the  one  side  and  on  the  other,  from  the  ter- 
mination of  the  war  until  1830.  In  that  year,  lor  the 
first  time,  Congress  was  induced  to  legislate,  and  did 
legislate.  To  the  particulars  of  that  act  I  need  not  re- 
fer, inasmuch  as  they  are  altogether  familiar  to  you. 

I  may  be  permitted  to  remark,  that  then  for  the  first 
time  was  the  objection,  which  had  been  previous  urged, 
surrendered.  But  why  or  wherefore  surrendered  is  not 
for  me  to  inquire,  nor  is  it  necessary,  in  the  examination 
before  me,  that  1  should.  It  may  be  that  it  arose  from 
a  conviction  the  previous  course  was  wrong ;  or  it  may 
have  been  the  result  of  liberality  and  good  feeling,  and 
a  desire  to  terminate  a  matter,  which,  being  retained, 
could  only  serve  to  keep  alive  unkind  and  unpleasant 
feeling  on  the  part  of  a  sister  State,  towards  the  govern- 
ment of  the  United  States.  Be  the  causes  which  led  to 
the  passing  of  the  act  of  1830  what  they  may,  they  af- 
fect not  the  question  now  under  consideration,  and 
hence  need  not  be  further  noticed. 

But  what  are  the  provisions  of  the  act  of  May,  1830, 
under  which  are  exclusively  derived  my  powers  to  sit 
in  this  case  in  the  character  of  Chancellor  ?  I  repeat 
that  the  act  threw  off  the  old  contested  point  which  so 
long  had  been  battled,  as  to  the  troops  not  being  in  the 
service  of  the  United  States ;  and  the  only  matters  re- 
ferred to  me  for  decision  were,  whether  there  was  an 
invasion,  or  reasonable  cause  to  apprehend  it,  and  if  so, 
then  whether  the  numbers  called  into  service  were  in 
undue  proportion  to  the  exigency  ;  but  with  this  express 
limitation,  that  whatever  I  might  think,  under  the  rules 
9 


66 

imposed  on  the  reference,  the  allowance  to  be  made 
should  not  exceed  a  given  amount.  Now,  in  making  my 
award,  it  occurs  to  me  to  be  very  immaterial  whether 
I  had  looked  to  the  personal  service  of  the  Militia  (their 
pay  I  mean),  to  arms  and  munitions  furnished,  to 
clothes  and  rations  claimed  because  not  supplied,  or  to 
any  other  miscellaneous  items  of  charge.  These  could 
make  no  difference  :  if  by  admitting  them  I  had  exceed- 
ed the  amount  of  the  appropriation,  no  payment  could 
be  made. 

But  in  looking  to  the  act  of  1830,  my  construction  of 
it  differs  from  your  own.  I  have  said,  and  I  repeat, 
that  it  provides  merely  for  the  adjustment  of  the  per- 
sonal services  of  the  militia,  or  in  other  words,  the  pay 
which  it  was  alleged  they  were  entitled  to,  in  conse- 
quence of  these  services.  You  ask  of  what  benefit  is 
this  in  a  time  of  war,  unless  subsistence  is  also  afford- 
ed ?  Most  readily  do  I  grant  you,  that  mere  personal 
service  is  of  little  avail,  if  the  soldier  be  not  clothed, 
armed  and  fed.  The  policy  of  every  government  will 
suggest  the  propriety  of  furnishing  these,  and  whatever 
else  may  be  necessary  to  give  efficiency  to  its  armies, 
rather  than  leave  their  procurement  to  the  uncertain 
exertions  of  the  troops.  But  certainly  it  will  not  be 
pretended  that  a  government  may  not  throw  off  the  ex- 
ercise of  this  policy,  and  leave  her  soldiers  to  their  pay 
merely,  without  an  undertaking  to  supply  either  arms, 
food  or  clothing.  Every  man  is  bound  to  defend  his 
country.  The  principle  is  indisputable.  But  what  com- 
pensation he  may  claim  for  doing  this,  is  matter  of  con- 
tract abiding  in  the  discretion  of  the  government,  to  be 
exercised  before  the  services  are  performed. 

I  intend  not  to  discuss  the  original  question    involved 


67 

in  this  enquiry  farther  than  may  be  necessary  to  make 
myself  understood,  and  I  had  indulged  a  hope  that  my 
last  letter  was  so  framed  as  to  draw  your  attention  un- 
derstandingly  to  the  precise  difficulty  which  I  felt  to  ex- 
ist, and  which  I  then  sought  to  explain.  It  was  howev- 
er written  hastily,  and  at  a  time  when  my  health  and 
the  fatigues  of  the  Office  were  such  as  that  most  proba- 
bly, (for  I  have  no  copy  before  me,)  my  expressions 
may  not  have  been  in  precise  correspondence  with  my 
intentions. 

I  intended  to  say,  that  the  claim  of  Massachusetts  had 
uniformly  been  resisted  ou  the  ground  assumed  in  1814 
by  the  Secretary  of  War,  because  the  Governor  of  the 
State  had  refused  to  place  the  militia  in  the  service   of 
the  United  States,  or  to  make  them  subject  to  the  com- 
mand of  officers  of  the  United  States,  that  Congress  in 
their  legislation  on  the  subject  in  1830  removed  this  ob- 
jection and  directed  the   Secretary  of  War  to  allow  the 
claim,  on  account  of  the  services  of  the  militia  with  a 
limitation  as  to  the  amount.     Now    if  the  troops  could 
not  be  paid,  and  were  not  paid  during  15  years  for  their 
personal  services,   because  of  the  objections  stated,  so 
neither  could  they  be  compensated   for  rations,  arms, 
munitions,  clothes,  &c.  inasmuch  as  the  right  to  the  lat- 
ter could  be  but  a  mere  consequence  of  the  admission 
of  the  former.     The  whole  being  thus  in  doubt  and  dis- 
pute,  legislation  took  place,  and  directions  were  given 
that  a  settlement  should  be  made.     For  what  ?  For  the 
personal  service    of  the  Militia   only ;  and  not  for  any 
other  item  of  charge  which  may  be  the  mere  sequiter  of 
the  first.     Congress  has  removed  the  objection  in  the 
one  case ;  but  not  in  the  other. 

Now  suppose  in  all  this,  there  is  mistake  and  error, 


68 

where  is  the  wrong  done  ?  In  what  does  the  injury  con- 
sist ?  If  I  overstep  the  authority  conceded  to  me,  I  am 
subject  to  the  imputation  of  having  arrogated  to  myself 
powers  not  intended  to  he  given,  an  assumption,  of 
which  Congress,  (and  rightfully  too,)  would  be  the  first 
to  complain. 

But  on  the  other  hand,  the  matter  rests  as  before, 
nothing  changed,  and  in  nothing  effected  to  the  preju- 
dice of  the  claim. 

The  same  justice  abides  in  Congress  and  the  same 
good  feeling  will  prompt,  to  do  towards  a  Sister  State, 
as  others  could  be  done  by.  Were  I  to  decide  every 
item  which  is  claimed,  of  what  avail  would  it  be  ?  No 
payment  could  be  made  because  no  funds  for  such  a 
purpose  have  been  placed  at  my  disposal.  It  would  be 
a  mere  extra  judicial  action,  upon  which  an  appeal  to 
Congress  might  be  made,  and  which  when  made,  might 
receive  for  answer  something  like  this.  The  Secretary 
was  neither  authorized  nor  required  to  give  an  opinion 
upon  this  subject,  and  we  can  regard  it  in  no  other 
light,  than  merely  as  an  opinion  unasked  for,  and  cer- 
tainly not  authorized  or  requested  to  be  given. 

You  enquire,  how  can  this  matter  fairly  and  under- 
standingly  be  brought  to  the  consideration  of  Congress 
until  the  amount  authorized  to  be  allowed  (under  the 
usage  settled  as  to  other  States,)  can  be  ascertain- 
ed. The  answer  to  this  is  I  think  not  difficult.  The 
report  of  the  Auditor  in  January  1 823  exhibits  the  vari- 
ous amounts  claimed  by  your  State  under  the  general 
heads  that  they  were  presented.  Under  the  head  Mis- 
cellaneous items,  which  are  those  now  immediately  un- 
der discussion,  and  all  of  which  have  been  declared  in- 
admissable  is  contained  an  amount  of  $240,759  59  cents. 


69 

' 
There  are   also  in   the  settlement  recently  made,  and 

which  my  report  will  show,  various  other  items,  under 
the  heads  of  alarms,  Guards,  and  executive  calls,  which 
have  been  dissallowed,  the  whole  amounted  to  $360,000. 
These  will  make  up  the  items  for  the  future  considera- 
tion of  Congress.  Infinitely  more  competent  than  I  am 
will  they  be,  to  examine  and  to  decide  upon  the  general 
and  particular  merits  of  those  disallowances,  and  with 
a  freedom  beyond  anything  that  I  can  feel  myself  au- 
thorized to  exercise,  may  admit  them. 

In  conclusion  I  must  entreat  you  to  extend  to  me  a 
reasonable  credit  for  good  feeling,  for  comity,  and  a 
disposition  to  meet  every  suggestion  you  make  with 
the  respect  that  is  due  to  the  frank,  open  and  courteous 
deportment,  which  has  characterized  our  intercourse, 
written  and  verbal,  throughout  this  intricate  examina- 

7  O 

tion.  The  zeal  and  industry  displayed  by  you  in  the 
execution  of  the  important  trust  confided  by  your  State, 
will  prove  to  her  abundantly  that  whatever  failure  has 
arisen  it  is  not  attributable  to  a  want  of  vigilance  and 
attention  on  the  part  of  him  to  whom  their  trusts  have 
been  confided.  Did  I  feel  myself  clothed  with  power 
to  act,  cheerfully  would  I  take  up  the  various  items  of 
the  account,  and  with  patience  go  with  you  into  an  exam- 
ination, to  the  extent  your  time  and  leisure  would  per- 
mit. But  feeling  myself  convinced  that  to  do  so,  is 
not,  nor  was  intended  as  a  privilege  to  be  given,  by  the 
act  of  1830.  I  cannot  consent  to  become  a  usurper  of 
authority.  Public  functionaries  must  be  governed  by 
law.  Discretion  should  only  be  resorted  to,  when  some 
previous  legislation  authorizes  its  exercise. 

With  great  respect,     J.  H.  EATON. 
John  Davis,  Esq.  Agent  for  the  Claims  of  Massachusetts. 


70 

(I) 
J.  Davis  to  J.  H.  Eaton. 

Worcester,  March  28,  1831. 

SIR, — Your  favor  of  the  15th  was  received  on  the  eve- 
ning of  that  day,  and  having  determined  to  leave  the 
City  of  Washington  the  next  morning,  various  indispen- 
sable engagements  left  me  no  time  either  to  acknowledge 
it  personally  or  in  writing.  This  I  intended  to  have 
done  before  now,  but  more  pressing  duties  as  well  as 
indifferent  health  have  hitherto  occasioned  a  postpone- 
ment. 

I  have,  however,  but  little  to  add  to  what  has  already 
been  presented  for  your  consideration.  I  most  sincere- 
ly regret  the  decision  you  felt  it  your  duty  to  make  in 
giving  construction  to  the  authority  confided  to  you,  as 
it  throws  us  back  upon  ground  which  will  probably  oc- 
casion further  delay  in  an  adjustment  which  ought  long 
since  to  have  been  closed.  When  Congress  passed  the 
act  directing  the  settlement  of  the  claim,  it  is  well 
known  it  had  previously  undergone  a  very  strict  exam- 
ination by  the  third  Auditor,  under  instructions  from  the 
House  of  Representatives  and  that  he  had  reported  the 
sum  of  $430,748,26  as  due  to  the  State,  upon  the 
principles  adopted  in  settling  the  claims  of  other  States. 
The  residue  of  this  sum,  after  deducting  $11, 000,  which 
was  advanced  some  years  ago,  has  been  adjudged  to  be 
due  under  the  provisions  of  the  act,  and  thasjbeen  paid. 
The  amount  thus  found  due  and  paid  will  on  recurrence 


71 

to  the  adjustment  made,  by  the  auditor,  be  found  to  con- 
sist of  almost  every  kind  of  charge  claimed  by  the  State. 
It  is  in  truth  precisely  similar  to  much  of  the  residue, 
which  is  suspended,  and  which  consists  of  charges  grow- 
ing out  of  the  services  of  the  same  troops.  For  exam- 
ple, the  items  for  forage,  servants,  travel,  fuel,  rations, 
&c.  of  the  staff  of  one  regiment  is  allowed  and  paid, 
while  like  charges  for  the  staff  of  another  regiment  in 
the  same  corps  is  disallowed,  because  the  certificate  at 
the  bottom  of  the  pay-roll  is  not  in  the  exact  phraseolo- 
gy required  by  the  army  Regulations. 

Again  in  auditing  charges,  many  items  which  are 
acknowledged  to  be  such  as  are  usually  allowed,  have 
been  suspended,  because  the  rule  of  the  Department 
early  adopted  in  such  settlements,  requires  that  they 
should  be  submitted  to  the  Secretary  of  War  for  his  ap- 
probation. 

I  recapitulate  these  facts,  to  prove  what  seems  to  me 
to  be  firmly  established,  that  the  principles  which  have 
led  to  the  allowances,  which  have  been  made,  if  follow- 
ed out,  would  cover  a  large  portion  of  what  remains  to 
be  satisfied,  for  the  payment  made  is  for  wages,  fuel 
hospital  charges,  forage,  servants,  &c.  and  much  of  the 
residue  of  the  demand  is  for  like  charges,  growing  out 
of  the  same  service,  and  therefore  involving  no  new  ob- 
jections. 

I  beg  leave  also  again  to  suggest  that  the  act  con- 
tains two  main  provisions,  which  do  not  necessarily  de- 
pend on  each  other.  The  first  directs  the  claims  in  cer- 
tain cases  to  be  settled  and  credited  to  the  State  under 
the  discretion  of  the  Secretary  of  War.  This  seems  to 
me  to  repose  in  the  Secretary  a  complete  power  to  set- 
tle all  the  charges  embraced  by  the  terms  of  the  act,  so 
far  at  least  as  to  ascertain  what  is  due. 


72 

The  second  provision  is  an  appropriation  designed 
to  carry  into  beneficial  effect  the  first.  But  at  the  time 
it  was  made,  the  amount  needed  to  meet  the  result, 
which  might  ensue  irom  the  examination  authorized  and 
required  by  the  act,  was  unknown  and  being  unknown, 
it  was  impossible  to  make  an  appropriation  providing 
with  exactness  for  it.  Congress  did  not  therefore  fix 
upon  the  sum  named  in  the  act  for  the  purpose  of  pass- 
ing judgement  that  so  much  and  no  more  was  due. 
There  is  nothing  in  the  language  which  authorizes  such 
an  inference.  The  settlement  was  directed  to  be  made. 
The  amount  which  would  fall  to  the  State  by  that  set- 
tlement was  unknown,  but  it  became  necessary  to  make 
some  provision  for  it.  The  auditor  had  declared  the 
sum  named  to  be  satisfactorily  vouched  and  this  was 
inserted  in  the  act. 

I  infer  from  all  these  circumstances  and  considerations 
that  Congress  intended  all  the  claim  falling  within  the 
principles  of  the  act  should  be  fully  settled,  and  if  the 
amount  should  be  found  to  exceed  the  appropriation, 
the  excess  was  to  stand  as  an  unquestioned  demand 
upon  the  United  States. 

Having,  however,  stated  my  views  much  in  detail,  on 
all  these  points,  in  my  former  communications,  I  will 
not  press  them  further,  but  ask  leave  to  observe  that  it 
will  give  great  satisfaction  to  the  States  interested  to 
resume  at  any  moment  the  settlement,  should  you  here- 
after consider  such  step  within  the  scope  of  your  author- 
ity. 

In  closing  this  communication,  I  take  great  pleasure 
in  acknowledging  the  courtesy  and  frankness,  which 
has  at  all  times  characterized  the  discharge  of  the  la- 


73 

borious  duties  which  have  devolved  upon  you  in  the  ad- 
justment of  these  claims.  And  while  I  would  not  press 
my  own  views  with  unbecoming  zeal,  I  cheerfully  accord 
to  yours  all  the  respect  which  is  felt  for  an  honest  diff- 
erence of  opinion. 

I  am,  with  great  respect, 

Your  Obedient  Servant, 

J.   DAVIS. 
Hon.  J.  H.  Eaton. 


Extract  from  a  Communication  to  Governor  Lincoln,  re- 
ferred to  in  the  Report. 

Lieutenant  Colonel  Towne  commanded  a  regiment  of 
Light  Infantry  at  South  Boston,  and  the  following  facts 
are  taken  from  the  Pay  Roll  of  the  Staff  of  that  regi- 
ment, and  will  show  the  general  character  of  the  deduc- 
tions made  by  the  Auditor,  or  other  accounting  officers — 
The  roll  as  allowed  by  the  State  foots  at  -  -  $1329,24 

The  whole  number  of  persons  is  thir- 
teen ;  the  highest  in  rank  a  Lieutenant 
Colonel,  the  lowest  a  fife  major : — the 
highest  pay  allowed  by  the  State  $15  a 
month, — the  lowest  $1 1 : — the  time  be- 
gins on  different  days  from  the  13th  of 
Sept.  1814,  to  the  20th  of  the  same 
month,  and  the  roll  is  made  up  on  the 
first  day  of  November  following. 
Deductions. 

1.  Over  payments  -    -  $57,43 

Townc   was  a   Lieutenant  Colonel 

10 


74 

Amount  claimed,  brought  forward,  $1329,24 

Commandant,  but  the  Commander 
of  a  regiment.  The  United  States 
allow  a  Colonel  $76  a  month,  as  the 
commander  of  a  regiment : — to  a 
Lieutenant  Colonel  but  $60,  being  a 
battalion  officer.  The  State  allow- 
ed Tovvne  $75,  because  by  our  law 
he  performed  all  the  duties,  and  had 
all  the  responsibilities  of  a  Colonel 
in  the  United  States. — The  pay  of 
every  commander  of  a  regiment,  is 
reduced  in  the  same  way,  for  we  had 
no  Colonels  in  the  service.  The  pay 
of  all  the  persons  on  the  roll  is  re- 
duced, some  from  $5  to  $6 — others 
only  some  30  cents,  but  all  the  deduc- 
tion except  from  Towne's  charge, 
arises  from  the  different  methods  of 
averaging  the  daily  pay  upon  the  time, 
in  the  months,  in  which  the  service  was 
rendered. — 

2.  Travelling  expenses,  noted  as  in- 
admissible    ------      -     -    49,00 

3.  Forage  to  and  from  camp,  noted  as 
inadmissible     --- 18,00 

4.  Payment  for  clothing  to  non-com- 
missioned officers,  inadmissible    -    -    36,07 

5.  The  charge  for  rooms,  or  quarters 
is  contrary  to  the  regulations  of  the 
army,  and  therefore  must  have  the 


000653507 

JPM         75 

Amount  claimed,  brought  fonvard  $1329,24 
special  sanction  of  the  Secretary  of 
War,  before  it  can  be  allowed     -     -    20,90 

G.  Forage  while  in  camp,  must  also  be 
sanctioned  by  the  Secretary  as  the 
certificate  of  Colonel  Towne  is  in- 
formal   177,00 

7.  The  charge  for  servants  is  in  like 
condition,  for  it  does  not  appear  that 
they  were  actually  mustered  into  the 
service     ---------    165,90 

8.  The  charges  for  transportation  of 
baggage  and  for  rations  to  camp  and 
the  charges  of  pay  to  and  from  camp 
are  suspended  until  the  distance  which 
each  person  travelled  shall  be  ascer- 
tained, to  wit, — Baggage      -     -          44,22 

Rations     -     -    -    -    16,24 

Pay 77,15      661,91 

Amount  actually  allowed  by  the  Auditor.     $667,33 

It  is  apparent  from  the  foregoing  that  the  Secretary 
of  War,  in  the  exercise  of  his  discretionary  power  would 
at  once  remove  a  portion  of  the  objections,  for  he  must 
know  that  an  officer  cannot  well  get  to  camp  without 
travelling,  nor  can  he  perform  the  active  duties  required 
of  him  in  the  field  without  horses,  servants  and  forage. 
This  paper  will  subserve  the  purpose  for  which  it  was 
designed,  as  it  will  show  the  character  of  the  allowances 
made,  as  well  as  of  the  charges  rejected,  and  it  will,  I 
think,  carry  with  it  the  conviction  that  the  same  princi- 
ples which  admitted  the  one  to  be  a  just  claim,  rnu&t 


,• 


76 

also  admit  the  greater  part  of  the  other  to  be  equally 
just.  When  the  reference  was  made  to  this  document, 
it  was  supposed  an  entire  copy  was  at  hand,  but  it  turns 
out  that  I  am  able  to  furnish  only  the  objections  made 
to  it  by  the  accounting  officers.  This  document  and  all 
others  were  audited  under  the  Resolution  of  the  House 
of  Representatives  of  the  15th  of  December,  1826,  as 
has  been  already  stated  when  no  agent  was  present  either 
to  make  explanations,  to  procure  additional  evidence  or 
to  obtain  the  sanction  of  the  Secretary.  It  was  to  re- 
move such  objections  as  these  that  I  proposed  to  the 
Secretary  of  War,  to  go  into  a  revision  and  examination 
of  the  account,  that  we  might  ascertain  what  portion  of 
the  balance  was  due  to  us  upon  the  principles  adopted, 
in  allowing  what  has  been  paid,  but  he  declined  acced- 
ing to  the  proposition. 


